on motion roe rehearing.
Jenkins, Justice.
The plaintiff wife moves for a rehearing, first, on the ground that the court based its decision on the erroneous assumption that plaintiff struck from her petition a prayer for specific performance of the pleaded written contract between her and her husband, and asked only to have title decreed as in her by virtue of a deed from her husband made contemporaneously with the contract; and that by this erroneous assumption the court erred in holding the verdict against the plaintiff to have been demanded for the reason that there was no delivery of the deed either to the plaintiff in person or to an attorney for her under any effective escrow. She contends that her prayer for specific performance, never having been stricken, remained an issue in the case; and that she was entitled to that relief on the contract. The other ground of the motion is that the court failed to pass on her exception to the admission of testimony by the attorney as to conversations of the parties when they left the deed and a duplicate original of the contract with him, over objection that such conversations were between attorney and client, and sought to vary the terms of the written contract.
The conclusion that the prayer for specific performance had been stricken was based on the record as it was brought to this court. The original petition, in a paragraph numbered “19,” described a deed dated June 10, 1935, from the husband to the plaintiff, and a deed dated September 29, 1936, from her back to the husband, which she alleged to be void for reasons stated; and prayed that the latter deed be so declared, and that “title be decreed to be in petitioner,” subject to described incumbrances. By an amendment of March 5, 1940, the plaintiff added a count 2, with paragraphs num bered “l”*to “12,” containing new averments as to the two deeds, and with prayers lettered “a” to “d,” which were followed by a prayer numbered “8 ” that “title be found and decreed to be in petitioner” by reason of the deed of June 10, 1933, from the husband, and that her deed back to him of September 29, 1936, “be decreed to be void and of no effect.” There were prayers lettered “f” to “i,” but no prayer lettered “E” It is apparently the prayer numbered “3” .which movant contends was intended to be stricken by her amendment, made September 4, 1940, hereafter described. By amendment of May 23, 1940, she added new paragraphs numbered “19 A” to “19 E,” in which she set forth a copy of the contract of December 14, 1936, between the parties, and another deed of the same date from the husband to the wife; the contract providing that if he drank any intoxicating liquor in the future, “upon satisfactory, proof . . the deed is to be placed upon the DeKalb County records, and the property is to become in fee-simple the property of the wife.” Immediately following the paragraph numbered and lettered “19 E” was a prayer that “said contract be specifically performed, and that the property be adjudged and decreed to be the property, of petitioner.” On September 4, 1940, she filed amendments, "“striking out the prayer for cancellation of the deed from petitioner to defendant, referred to in the 19th paragraph of the original petition;” changing averments in that paragraph; and adding a prayer, that, “in the event said realty is not found and decreed to be the individual property of petitioner, nevertheless that it be awarded to [her] as alimony.” On the same date, September 4, 1940, she filed another amendment to count 2, as follows: that she “strikes the prayer designated as ‘E’ of said count, and substitutes in lieu thereof a prayer that said land be found and decreed to be the property of petitioner under contract and deed referred to in the later amendment made to said count.”
When this court examined the pleadings as they appeared in the record, and found no paragraph lettered “E” in any earlier pleading to correspond with the “E” which the pleader struck, the court referred to the later amendment, of May 23, 1940, in which, immediately following the paragraph, numbered and lettered “19N,” there was the prayer for. specific performance and other relief. Since there, was no other paragraph in the prayers which was let tered “E” or connected with any paragraph lettered “E,” it was assumed in the original decision that the prayer in immediate connection with paragraph “19 E” was the prayer which plaintiff had stricken. But she now apparently contends that it was the prayer numbered “3” in the earlier pleading which she struck or intended "to strike. Whether this erroneous lettering and numbering, which led the court into the conclusion stated, was a typographical error that occurred before the pleading was filed, or occurred when it was ■copied in the record, does not appear; but this would seem to be a matter of no practical import, since, even if it be assumed that the prayer for specific performance was not stricken, the result of the case under that additional aspect would not be different.
The judge instructed the jury not-to return a general verdict, but to answer six submitted questions. The only one relating to the described deeds or the contract was: “Did the property described in the contract and deed made by the parties under date of December 14, 1936, become the property of the plaintiff . . under the contract and her performance thereof?” To this the jury •answered “No.” But they allowed the plaintiff alimony in stated monthly sums, and other lump sums amounting to $3500, to be paid on two specified days; the lump sums to be paid irrespectively ■of any remarriage of the plaintiff. The decree made the findings ■of the jury as to property rights the judgment of the court; and it further provided that the lump amounts be “special liens against the property of the defendant,” and that “executions for said . . recoveries issue now and be recorded, but enforcement by levy and •sale thereof stayed until due according to the finding of the jury.”
The plaintiff’s motion for new trial contains only the general .■grounds, and the exception to the admission of testimony by the attorney relating to the contract, accompanying deed, and conversations of the parties. There is’ no exception .to any question submitted to the jury, or to the failure to submit any other requested •question, or to the decree as entered. Counsel for movant suggested in his original brief that “in ease of a retrial . . the scope of the trial should be limited, either to the question of title under the •contract, or title and amount of alimony,” though “she would be •content with a trial limited to title.”
The judge, under the Code, § 37-1104, having submitted to the .jury special issues, which did not include any question as to requir ing specific performance of the contract, and having submitted only the question, “Did the property . . become the property of the plaintiff under the contract and her performance thereof?” thus confining the jury to the one issue whether title had actually passed to the plaintiff, their verdict necessarily was limited to that issue, and did not embrace the question as to whether title should be ordered to pass on account of the husband having subsequently violated the contract by indulging in intoxicating liquor. Accordingly, even if it be assumed that the prayer for specific performance was not stricken, or even if the plaintiff might have had that relief under her general prayer, still, in the absence of any objection and exception to the questions as submitted, covering only the question of actual title without a specific performance of the contract,, neither the failure to submit the latter issue nor any right to recover thereunder would afford ground for setting aside the verdict. See, in this connection, Jefferson v. Hamilton, 69 Ga. 401 (2, a), 402, and cit.; McWhorter v. Ford, 142 Ga. 554 (5, a) (83 S. E. 134); Lake v. Hardee, 55 Ga. 667 (2, 3); Walker v. Horton, 184 Ga. 429 (8) (191 S. E. 462), and cit.
Under the preceding rulings and the rulings in the original decision, it remains unnecessary to consider the exception to the admission of testimony by the attorney, relating to the contract, contemporaneous deed, and ineffective escrow.
Rehearing denied.
All the Justices concur.
