Hines v. Johnston , 95 Ga. 629 ( 1895 )

Atkinson, Justice.

The facts in this case are stated with sufficient fullness and accuracy in the official report.

1. According to the view we take of the contract entered into between the oi’iginal pei’sons under whom the parties to this case respectively claim, and which is the basis of the plaintiff’s alleged cause of action, the rights of the plaintiff’s intestate with respect to the subject-matter of the contract were not concluded by his death. If we were at libei’ty to treat it as a simple contract of hiring, by which, for a stipulated sum to be paid, the plaintiff’s intestate undertook to pei'form a pai’ticular stipulated service, which was itself entii’e and indivisible, it would have fallen squarely within the tei’ms of section 2547 of the code, and squarely within the principle announced in the case of Cutter v. Powell, cited in vol. 2 of Smith’s Leading cases, p. 1 (2d Law Library ed.), and which was pressed upon us with great earnestness by the able counsel who appeared for the defendant in error. But a careful consideration of the terms of this agreement will not, in our opinion, justify us in placing upon it such a construction. In the first place, Scott, Carhart & Co. and W. B. Johnston, the other two parties to the contract, were not engaged in an independent speculation, nor did they employ Hines for the performance of any particular duty in connection with such a venture; but on the contrary the three made this mutual agreement, according to the terms of which Scott, Carhart & Co. and W. B. Johnston were to contribute certain specified sums of money; and as against such moneys, Hines was to contribute his services as a lawyer. The purpose designed to be accomplished by this agreement and this contrivance between them was to form a company for the purchase of certain lands, with the understanding that the legal title, for some reason undisclosed in the record, was to be vested in Scott, Carhart & Co. and "W". B. Johnston, they agreeing to hold the same’to the joint use of the three parties to the agreement. Scott, Carhart & Co. and Johnston undertook upon their part 'to sell the land, and after the payment to them of the money advanced, with interest, the profits resulting from the joint venture would be equally divided between the three parties thereto. In the concluding paragraph of the agreement, it is stipulated that Hines is to have no interest in the lands until a sufficiency thereof has been sold to repay the moneys advanced by Scott, Carhart & Co. and Johnston for the purchase money of the land, but' eo instanti with this, he was to take a' vested interest in the land itself. In other words, in order to insure to them, the repayment of the purchase money, they took to themselves the legal title, with a power of sale for the purpose of reimbursement, saving the equity of Hines, and according to him the right to share in the profits. The reason for this precaution may be found in the circumstance that at the time this transaction occurred and this deed was executed, it appears that Hines was involved, laboring under serious pecuniary embarrassment, and it is entirely probable that his co-contractors were unwilling to hazard their money by taking the title in such shape as would invest him with a legal interest which would be subject to levy and sale for the satisfaction of his debts. At all events, by whatever motive they were influenced, the conveyance was so drawn as that Hines could acquire a legal title to a given interest in the property only when a sufficiency thereof was sold to extinguish the .advancement thereon made by his co-contractors. It will be observed that in the fifth paragraph of the agreement, in stating Hines’ situation with reference to the land, the following language is employed: “ It is agreed that he is to have no interest in said lands until the purchase money is paid.” His, therefore, was a contingent interest in the land itself, but a vested interest in the ultimate profits which would result from the joint venture. Without having the legal title, he had a property in the thing itself. He was a joint purchaser with Scott, Carhart & Co. and Johnston, and the mere failure to take the legal title in him as a joint tenant could not •deprive him of his equitable interest in the profits which might ultimately result from the joint venture. His ■death, therefore, could not have destroyed his interest in this venture. The very purpose of the parties, as •expressed in this agreement, was that they would hold the land for speculative purposes. The initial steps were taken and the enterprise completed when the purchase was made and title to the property acquired by the parties. Hp to that point, according to the evidence in the case, Hines performed all that was required of him, and all that was necessary to the completion of his •contract. He had so far performed it as to vest in him •a perfect equity to a one third interest in the ultimate profits of the joint venture; he had so far performed it as to vest in him a title to one third of the land itself when his co-contractors should exercise the power of ■sale which was conferred upon them by the agreement between the parties. It appears that Hines, shortly after this was done, died; that Scott, Carhart & Co., years afterward, sold a half undivided interest in these' lands to other parties, who in turn sold to Johnston ; but at no time' was there ever a sufficiency of the land sold by Johnston and Scott, Carhart & Co., or by Johnston himself after he acquired the entire interest of Scott, Car-hart & Co., to reimburse them or him for the money laid ■out and expended in the purchase of the property. This suit was not brought until 1889, and it is earnestly insisted by counsel for the defendant in error, that, admitting even that Hines had at one time an interest in the premises or in the proceeds from the sale of them, if not barred by law, it was a stale demand, and that the courts would interpose an equitable bar to the prosecution of the right. It was urged that it was within the power •of Hines, if he had an interest, to compel a sale. ¥e do not think that these contentions are well founded. 'The land was bought for speculative purposes. Subsequent developments show that it was a wise investment. Johnston, as well as Scott, Carhart & Co., awaited the great increase in value which their keen foresight had anticipated. It was the right of Hines, and those holding 'under him, likewise to await the rise in value and reap the profit of this ancient investment. This claim was neither stale, nor was it barred by any statute of limitations of which we are advised. Johnston held the power of sale, and until he saw proper to exercise that power and realize sufficient money'to repay the original purchase money for the land, it was not incumbent upon Hines to demand an accounting. Hines was not, in strict law, a cotenant; therefore could not demand a partition of the premises; and no claim even of actual possession on the part of Johnston could have defeated Hines’ title, for the reason that because of the act of' Johnston his title would not then have accrued. For the same reason he could not have sued for an interest in the profits, because, as the land remained as an entirety unsold until a short time before this suit was brought, no moneys ever came into the hands of Johnston arising from the sale of the land, in which Hines or his heirs would have been entitled to participate as a part of the profits of the joint venture. Until such a time, they would have had no right to an accounting at the hands, of Johnston or his privies in estate. No statute of limitations began to run until the accrual of a cause of action, and inasmuch as this suit was brought within the statute after the accrual of a right of action, it cannot,, in any just sense, be impeached as stale. So far as Johnston was concerned, there was never any breach of duty upon his part towards Hines until after the sale of the land and his refusal to account. We think the evidence-introduced upon the trial of the case, under the views we have before expressed, makes out a cause of action in favor of this plaintiff. Whether or not she shall be entitled to recover a full one third interest in the profits resulting from the sale of this land, we do not undertake now to decide. If Hines before his death rendered all the service which was required of him by the contract, the share of his estate would be a full third. If he had not performed all the service required of him at the time of his death, the questions as to whether that share should be reduced, and if so, how much, and if reduced at all, whether the deduction should be made on the basis of charging that share with any costs or expenses incun’ed because of the non-performance of services, or the deduction should be arrived at upon an equitable apportionment of such, costs according to the amount of additional trouble and expense incurred by Johnston in and about the negotiation and consummation of the sale of the property, are questions for future determination when the cause shall be tried again in the superior court.

2. Upon the trial of the case, it appeared that Johnston had executed a bond for titles in-favor of the persous to whom he had sold the premises for and on account of which this suit was brought. After the execution of the bond for titles, Johnston died, and thereafter his executrix, the defendant in the present case, made deeds to the premises described in the bond, in favor of the obligees therein named, in one of which it was recited that the terms of the bond having been complied with, and the purchase money having been paid, and the parties to the bond, or their assigns, having apportioned out the lots among themselves and requested that deeds be mado each for his own lot, etc. A notice was served upon the éxeeutrix requiring her to produce, to be used as evidence for the plaintiff, the bond for titles referred to in such deeds. She answered that the bond for titles was not in her power, possession, custody or control. The plaintiff' then offered secondary evidence of its contents, which was repelled by the court, upon the objection of defendant’s counsel that the proper foundation had not been laid for the introduction thereof, they insisting that to authorize the introduction of secondary evidence of the contents of this bond for titles, the original paper must be shown not to be in the power, possession, custody or control of the obligees in the bond. We do not think this secondary evidence should have been excluded. This bond had performed the office for which it was designed by the obligor. In accordance with its terms, his executrix had made the deeds which he undertook to execute. The bond itself being performed and the purchase money paid, the presumption is that it was redelivered to his executrix. At all events, she was the legal custodian of this paper, and when notice was served upon her to produce it and she was uuable to find it among the papers of her intestate or her own, the presumption arose that it had been destroyed. Hpon the strength of this presumption, in the absence of the bond itself, secondary evidence of its contents was admissible, and the court erred in excluding it.

3. At the trial, the plaintiff undertook to show by a witness, other than the keeper of the records, that he had examined the public records of the county of Bibb, and that upon such records there was no evidence of a conveyance of certain premises involved in this controversy. It was objected that such witness was incompetent to testify to the absence of anything from a public record; that this could be proven only by the keeper of the records himself. The objection was sustained, and the testimony excluded. If the testimony were otherwise relevant, we think the court erred in excluding it upon the objection taken. Official character does not give to any person exclusive competency to testify to any matter concerning which the public or any other person may be as well informed as he. Any witness who had read the records in the clerk’s office would know as well as the clerk himself whether a particular deed was recorded there. If it was not so recorded, he could testify to such a fact as well as the clerk. But if, on the other hand, it was sought to show that a particular paper was recorded in the clerk’s office, this fact could not be proven by any witness other than the clerk, nor by him except by a certified copy of such record under his hand and seal. The certificate of the clerk is sufficient to authenticate any record existing in his office; but his certificate to the fact that a particular record was not in his office would not be admissible evidence. In the latter case, any witness who knew the fact could testify to its truthfulness. "W"e think, therefore, the court should have admitted the evidence.

4. Upon the'substantial merits of this case, a nonsuitshould not have been awarded. At the next trial, if there are any equities between the parties other than are suggested by the record now before us, they can and doubtless will be adjusted upon proper, legal and equitable principles. From the earnest argument of the-counsel who appeared for the defendant in error here,, we are rather induced to the opinion that the circuit-judge was influenced to the grant of this nonsuit by the conviction that this plaintiff’s right of action was barred. We think in this our learned brother was in error, and that upon another trial a conclusion can be reached which will give full expression to all the legal and equitable lights of all the pax’ties concerned.

Let the judgment of the court below be Reversed.