Rudulph v. Washington , 146 Ga. 605 ( 1917 )

Pee Curiam.

1. In an action for land instituted by A against the heirs at law of B, who died .intestate, the heirs at law of B are not to be deemed the personal representatives of B, within the meaning of the Civil Code, § 5858, par. 1, and A is competent as a witness to testify in his own behalf as to conversations with B, affecting the merits of the case. Boynton v. Reese, 112 Ga. 354 (37 S. E. 437).

(a) The case of Willis v. Bonner, 136 Ga. 720 (71 S. E. 1048), and the cases cited therein, had reference to transactions where a husband or wife of the deceased person was a party to the case. The rulings there made will not be extended to a case like the present.

2. Sayings of a deceased person in possession of land in favor of his interest are admissible in evidence to explain the character of his possession. Civil Code, § 5767; Wood v. Crawford, 75 Ga. 733 (5); Godley v. Barnes, 132 Ga. 513 (3), 514 (64 S. E. 546). See also Causey v. White, 143 Ga. 7 (7), 8 (84 S. E. 58).

(a) The issues raised by the pleadings, upon which there was evidence, were of such character that the error in rejecting evidence as complained of in'the eighth amended ground of the motion for new trial requires a reversal.

3. Several grounds of the motion for new trial complain of the omission of the judge to charge the jury, without request, upon matters depending upon the evidence; and one ground of the motion complains of a lengthy excerpt from the charge where the court attempted to instruct the jury upon a concrete statement of the case. As the judgment will be reversed upon the grounds above stated, and as the evidence may not be the same on another trial, it is unnecessary to rule upon the assignments of error based on the grounds just mentioned.

Judgment reversed.

All the Justices concur, except Pish, G. J., absent.