Hayes v. Hill ( 1898 )

Simmons, O. J.

Hill obtained a judgment against Hayes. An execution issued thereon was levied upon a certain tract of land. Hayes, as next friend of his two minor children, claimed the land. The claimants contended that, prior to the creation of the debt by Hayes to Hill, the former owed his wife a con-siderable sum of money; that in payment of this he made to her and the claimants, the two children, a deed to the land levied upon. It appears that this deed was attested by but one witness ■at the time it was executed. The jury found the land subject. A motion for a new trial was overruled, and claimants excepted. The main question at issue on the trial seems to have been, whether the deed from Hayes to his wife and children was ■fraudulent. To establish his good faith in the matter, the •claimants tendered-in evidence a letter written by Hayes to his wife long prior to the creation of the debt upon which the judgment was founded. This letter acknowledged the writer’s indebtedness to his wife, and spoke of her as having purchased •some land, the material portion being as follows: “I am afraid I won’t get you up $400, as you have bought the Jim Wilson place and I will have to get it up as I owe you. So you get up .all you can and have the cotton ready for market. So I get you up $400 that will do you as I owe others.”: This letter was.excluded by the court, and this ruling constitutes one of the errors •complained of as ground for a new trial. We'think the court erred in rejecting this evidence: The bona .tides of. the debt and of its settlement by the conveyance was to be passed upon by the jury. The admissions made in this letter were circumstances-from which the jury could easily have inferred that the husband was ,at that time indebted to the wife, and that in the settlement of this indebtedness he, in good faith, conveyed the land to her and the claimants. It is not probable that he would commence,, long prior to the creation of the debt, to concoct schemes to defraud his future creditor or that he would falsely make such admissions against his interest as were contained in this letter. What weight the jury would have given this letter we are, of course, unable to say. I will say for myself, however, that had I been a member of the jury it would have had great weight with me in determining the -question of the bona fides of the indebtedness -and conveyance. This being the principal question in the--case, we think, under the ruling in Lamkin v. Clary, 103 Ga. 631, the letter was admissible in -evidence. We are inclined to-think also that, under the ruling in Smith v. Cox, 20 Ga. 240, the letter was admissible as a saying or admission of the defendant in fi. fa.., against his interest, before the commencement of litigation. For these reasons the judgment of the court below must be reversed.

It appears that the deed from Hayes to his wife and children was attested -at the time of its execution by but one witness. As-to this question, see Howard v. Russell, 104 Ga. 230.

Judgment reversed.

AU the Justices concurring.