Terry v. Fickett , 199 Ga. 30 ( 1945 )

1. Even if it be assumed that the verdict was a special one, as distinguished from the general one, the motion to dismiss on the ground that there was no exception to the decree is without merit, the bill of exceptions specifying the final decree as a part of the record to be sent up. Albany Federal Savings Loan Assn. v. Henderson, 198 Ga. 116 (31 S.E.2d 20).

2. This being a suit to cancel deeds, to enjoin a sale by administrators, to have title decreed in the complainant, and for an accounting for the rents and profits of the property while the same was in possession of the decedents, it was erroneous to overrule a demurrer pointing out that so much of the petition as sought an accounting and a decree accordingly was premature, the petition on its face disclosing that the action was filed within less than twelve months from the qualification of the defendant administrators.

3. Other grounds of demurrer, not argued or even referred to in the briefs, will be treated as having been abandoned by the plaintiff in error.

4. the equitable bar which a court of equity may interpose, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights, may be urged by a defendant in the form of a plea, as well as by demurrer, when in the latter case the facts sufficient to constitute such bar appear on the face of the petition.

5. An order overruling a demurrer by the defendant, based upon the ground that the petition affirmatively shows that the complainant has been guilty of such laches as will debar him from the relief sought, will not warrant the sustaining of a demurrer by the complainant to a plea setting up the defense referred to in the preceding headnote, when the plea contains averments not appearing on the face of the petition, as, for instance, that by the plaintiff's delay essential witnesses have been made unavailable and the ascertainment of the truth as to the matters complained of has been rendered difficult because of the obscuration of evidence brought about by the death of the parties. Compare Citizens Southern National Bank v. Ellis, 171 Ga. 717 (3 d) (156 S.E. 603); Equitable Building Loan Assn. v. Brady, 171 Ga. 576, 585 (156 S.E. 222).

6. That the defendant administrators, after their demurrers were overruled, asked that the case be put upon the trial calendar, did not constitute an abandonment of their insistence that the suit, as to the accounting, was prematurely brought.

7. In order to render a party incompetent to testify in a suit instituted or defended by the personal representative of a deceased person as to transactions and conversations with the deceased, he must (1) be an opposite party; or, (2) if he be a party defendant, his evidence would tend to relieve or modify the liability of the party offered as a witness and tend to make the estate of said deceased party primarily liable for the debt or default.

8. As against the objection that it was irrelevant, evidence that A. W. Fickett had failed to account for rentals of property not involved in the present litigations was admissible, as showing conduct in other transactions of a similar nature to that under investigation.

9. It is not cause for a new trial that the court failed to give in charge certain requests, when it appears that the same were not fully adjusted to the issues in the case.

Nos. 15085, 15086, 15106, 15107. FEBRUARY 17, 1945. In August, 1943, R. N. Fickett filed a petition in Fulton superior court against C. B. Terry in his representative capacities as administrator de bonis non cum testamento annexo of the estate of Albert W. Fickett, who died testate on or about January 15, 1943, and as administrator of the estate of Mrs. Mazie T. Fickett, who died intestate on or about April 1, 1943; and against G. W. Strickland. The petition as amended alleged as follows: The defendant Terry was appointed administrator of the two estates on or about May 4, 1943. On and prior to September 18, 1937, the complainant, R. N. Fickett, and his brother, Albert W. Fickett, jointly owned described real estate in Fulton County, Georgia, R. N. Fickett owning a five-sixth undivided interest therein, and Albert W. Fickett a one-sixth interest. On or about said date, the complainant was approached by his brother, who proposed that they sell the properties to G. W. Strickland, and he and his said brother executed warranty deeds conveying said properties to Strickland, and the deeds were left with Albert W. Fickett. All of the properties referred to were left with the latter to manage, maintain, and rent for the account of Albert W. Fickett and the complainant. The complainant received no statement of account from his brother, although he several times requested a statement. Albert W. Fickett being his brother, in whom he had absolute confidence, he did not press his request for an accounting, and was under the impression that the sale by him and his brother to Strickland was never consummated, and that his and his brother's deed or deeds were never delivered to Strickland. On May 1, 1943, he learned for the first time that their deed to Strickland, and the latter's deeds to Albert W. Fickett and his wife, Mrs. Mazie T. Fickett, were filed for record in December, 1937. C. B. Terry as administrator of the two estates is undertaking to sell the properties at public outcry to the highest and best bidder, and is advertising said proposed sale. The complainant contends that said administrator is entitled to sell only a one-sixth undivided interest as the property of Albert W. Fickett, and is not entitled to sell any interest in said properties as the property of Mrs. Mazie T. Fickett; that the complainant is entitled to have each and all of said deeds — the one to Strickland, and the latter's deeds to Albert W. and Mazie T. Fickett — surrendered and canceled, and to have a decree that the complainant is the owner of an undivided five-sixths interest in each and all of said described properties, and an accounting from the estates of Albert W. and Mazie T. Fickett for the rents and profits received by them since the execution of the deeds by Strickland to them as to five-sixths interest therein; and he so prayed, and that Terry be enjoined and restrained from selling said properties, or offering them for sale.

The defendant Terry, as administrator of each of the two estates, i. e., of Albert W. Fickett and of Mazie T. Fickett, filed identical demurrers on the following grounds: That the petition fails to set out a cause of action; that it affirmatively appears that the complainant has been guilty of such laches as will debar him of the relief sought; that it is a stale demand; and that there is a misjoinder of parties defendant, and a misjoinder of causes of action. He demurred to the allegations seeking an accounting and a decree in the complainant's favor, on the ground that same is premature, and that it affirmatively appears from the allegations of the petition that the complainant is entitled to no relief by way of accounting. All grounds of the demurrers were overruled, and the defendant administrator filed exceptions pendente lite. On the trial the jury returned a verdict for the complainant, finding that all the deeds in question be set aside and the properties revert to the original statutes, and that the complainant have five-sixths of all rents collected, less all expenditures made on the properties, amounting to $827.80.

The defendant administrator filed two separate motions for new trial, one as administrator of the estate of Albert W. Fickett, and the other as administrator of the estate of Mazie T. Fickett. The grounds of these motions are much the same, differing only as to whether the witness whose testimony was admitted over objection was testifying as to transactions had with Albert W. Fickett or with Mazie T. Fickett. In both motions, as preliminary to and by way of laying the foundation for the grounds themselves, there is the averment that the complainant offered G. W. Strickland as the sole witness from whom evidence was elicited, either showing or tending to show the following fact: that no money or other thing of value passed from Strickland to A. W. Fickett by virtue of the first set of deeds; that A. W. Fickett did not deliver said deeds to Strickland or to anyone for him; that in reality there was no delivery of said deeds to Strickland; that no money or other thing of value passed from A. W. Fickett and Mazie T. Fickett, or either of them; that the deeds out of Strickland were executed pursuant to a conversation and agreement between Strickland and A. W. Fickett, which was given in detail; that the complainant offered no evidence touching the matter except the deeds themselves; that Strickland testified that at no time did he have a communication or transaction with Mazie T. Fickett with respect to the execution or delivery of either the first or second set of deeds, or respecting the payment of the consideration therein named. The motion filed by Terry as administrator of the estate of Mazie T. Fickett contains only grounds reciting the admission of certain evidence over the objection of the movant. The motion filed by him as administrator of the estate of Albert W. Fickett contains grounds reciting objections not only to the admission of evidence, but also to the refusal to give in charge certain written requests. Both motions were denied, and the case comes to this court on two main bills of exceptions and two cross-bills. The main bills assign error upon the overruling of the demurrer, and to the refusal of a new trial. The cross-bills except to the refusal of the court to strike an amendment to the plea offered by the defendant administrator, denying the right of recovery against him by the complainant on account of alleged delay in bringing the action; the other exception being to the refusal to allow the complainant to introduce in evidence the written stipulation by counsel for the administrators to the calendar clerk of the court that the case be set for trial as a jury-contested case, the contention being that the administrator could not thereafter complain by demurrer that the suit was prematurely brought so far as the accounting is concerned. Here is a rare instance of quadruplets — four writs of error in the same case, two main and two cross-bills. They may be treated in one opinion. The suit is against three defendants, two of whom are administrators of different estates, one that of a husband, the other, that of the widow and sole heir-at-law of the former. The suit seeks cancellation of deeds, an injunction to prevent a sale, a decree of title in the complainant, and an accounting against the administrators for rents, issues, and profits. On the face of the petition the fact is disclosed that the action was brought before twelve months had elapsed since the appointment of the administrators. Demurrers were filed. In addition to general demurrers to the action as a whole, other grounds were that as to the accounting the suit was filed prematurely. The demurrers were overruled. The case went to trial. The judge did not, in his instructions to the jury, submit certain questions, with direction that the jury, instead of returning a general verdict, answer the specific questions submitted. There is a motion to dismiss the two main bills on the ground that there is no error assigned on the final decree. Error is assigned on the judgment denying the motion for new trial, and the bill of exceptions specifies the final decree as a part of the record to be sent to this court.

1, 3, 4, 5, 6. Nothing will be added to what is held in the corresponding headnotes.

2. The Code, § 113-1526, provides as follows: "No suit to recover a debt due by the decedent shall be commenced against the administrator until the expiration of twelve months from his qualification. This exemption shall not apply to an administrator de bonis non, unless appointed within the year allowed to his predecessor. In all cases the administrator de bonis non shall be made a party to suits pending against the administrator, upon scire facias returnable to the first term." It will be noted that this section only comprehends suits to recover debts due by the decedent. Adder Machine Co. v. Hawes, 152 Ga. 826, 827 (111 S.E. 188). It has been held that it does not prevent a party from seeking an injunction against the administrator within the twelve months (Womack v. Greenwood, 6 Ga. 299, 302); nor a suit seeking cancellation of a deed to an intestate. Lanfair v.Thompson, 112 Ga. 487 (37 S.E. 717). It would seem, from the above, to follow that, even if the contention could be raised by general demurrer that the suit could be said to have been prematurely brought under the section above referred to (compareButler v. Floyd, 184 Ga. 447, 191 S.E. 460), still, such a demurrer would not be good as to a suit seeking cancellation, injunction, and a decree of title. The present suit, however, seeks more. It prays for an accounting against the administrators, and, as a matter of fact, a judgment de bonis testatoris was entered against them.

7. Ground 4 of the motion complains of the admission of certain testimony of G. W. Strickland, a party defendant and witness for the plaintiff. The testimony to which objections were interposed related to transactions and communications, or the absence of such, between the witness and A. W. Fickett and Mazie T. Fickett. This testimony is rather voluminous, and we deem it sufficient to say, in brief, that it was to the effect that neither A. W. Fickett nor Mazie T. Fickett paid the witness anything of value as a purchase-price for the properties conveyed by the three warranty deeds from the witness to the Ficketts; that he never had a conversation with Mazie T. Fickett with reference to the conveyance of the property by him to the Ficketts; that he did have a conversation with A. W. Fickett, who approached him and told him that he (A. W. Fickett) and his brother (the plaintiff) owned certain property which A. W. Fickett desired to purchase, but which he did not think his brother would sell him, and he had talked to his brother about selling to the witness, and that later A. W. Fickett told him it was all right for him to sign the deeds; that he had never seen the deeds from R. N. Fickett and A. W. Fickett to him, and never paid anything of value to the Ficketts for the properties described in the deeds. The testimony was objected to upon the general grounds: (a) that the witness was not competent to testify as to a transaction or communication, or the absence of such, between himself and the deceased persons, and the evidence was not binding upon the estate of Mazie T. Fickett, her personal representative being a party to the suit, and the witness being a party to the suit and being what the law calls an "opposite party;" (b) that the evidence tended to impair or break down title to properties of the estates of the deceased persons and had the effect of disputing and impeaching the warranty deeds from the witness to the deceased persons, and the witness was estopped to deny, dispute, or impeach his title, he having parted with possession of the property.

Preliminary to a discussion of the question presented, it might be well to reiterate that the suit was brought by R. N. Fickett against G. W. Strickland, C. B. Terry as administrator de bonis non cum testamento annexo of the estate of Albert W. Fickett, and C. B. Terry as administrator of the estate of Mazie T. Fickett. The plaintiff sought, in addition to other relief, a cancellation of the deeds from the plaintiff and A. W. Fickett to the witness, who by warranty deeds had conveyed the properties in controversy to A. W. Fickett and Mazie T. Fickett, and a decree of title in the plaintiff to a five-sixths interest in the properties. The testimony objected to related to both sets of deeds — an absence of consideration of both sets of deeds, a nondelivery of the first set of deeds, and the circumstances of the execution of the second set of deeds.

The Code, § 38-1603 (1), provides: "Where any suit shall be instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, or transferee, or the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person as to transactions or communications with such insane or deceased person, whether such transactions or communications were had by such insane or deceased person with the party testifying or with any other person." The witness was not an "opposite party" within the contemplation of the law. We recognize that a party to a suit, although named a party defendant with the administrator of an estate, may be an "opposite party" to the administrator within the meaning of the Code, where their interests are directly opposed. Brooks v. Brooks, 185 Ga. 549 (195 S.E. 869). We do not believe, however, that the interests of the parties defendant in the instant case were directly opposed to an extent which would make them opposite parties within the meaning of the law. Furthermore, the witness did not testify "in his own favor." His testimony was against his interest, and was not calculated to produce a result favorable to himself.

In Washington v. Johnson, 155 Ga. 91 (116 S.E. 536), this court said: "Where a party, sued upon a promissory note jointly with another party who was a mere surety or accommodation indorser upon the note, suffered judgment to go against himself and his surety, and subsequently transferred title to land of which he was owner to a third person by a warranty deed which, it is alleged, was without consideration and fraudulent, and was executed in order to defeat a claim which the surety would have had against him for payment of the original debt reduced to judgment, such a person is a competent witness, when introduced by the plaintiff in a suit brought by the surety against him and the third party to whom he had conveyed the land, to show that the deed was without consideration and void." In the Washington case the plaintiff sought to have a lien created in his favor against the land. The court, after stating that the evidence was not inadmissible under § 38-1603 (1), above quoted, held that the evidence was not inadmissible under § 38-1603 (7), which provides: "When suit shall be instituted against joint defendants, one of whom shall be the representative of an insane or deceased person, the sane or living party defendant shall not be admitted to testify as to any transaction or communication with the insane or deceased party, when his evidence would tend to relieve or modify the liability of the party offered as a witness and tend to make the estate of said insane or deceased party primarily liable for the debt or default." The Code section above referred to was a part of the evidence act of 1889 (Ga. L. 1889, p. 85), which, after naming the exceptions that would render a witness incompetent, contained a statement that there should be no other exceptions allowed, which words are now a part of that act as codified. The settled construction of that act has been to confine the exceptions to the plain letter of the law. The testimony was not inadmissible for the reasons assigned.

8. Grounds 6, 7, 8, and 9 of the motion complain of the admission of evidence tending to show that A. W. Fickett had failed to account for rentals of properties which were not involved in the litigation. The evidence was objected to on the ground of irrelevancy. It is well settled that motive and intent may be shown by conduct in other transactions of a similar nature to that under investigation. Eberhardt v. Bennett, 163 Ga. 796 (3) (137 S.E. 64). For this reason, under the facts in this case, the evidence was not inadmissible on the ground that it was irrelevant.

9. There is no merit in other grounds of the motion. Complaint is made of the trial court's refusal to give in charge certain requests. The requests were not fully adjusted to the issues of the case, and the court did not err in refusing to charge them.Hicks v. Hicks, 196 Ga. 541 (2) (27 S.E.2d 7).

If counsel for the complainant will, within ten days after the filing of the remittitur in the trial court, write off from the decree the amount of the money recovery awarded by the jury, the judgments on the main bills will stand affirmed, otherwise they will be reversed.

Judgments affirmed on the main bills of exceptions, withdirection; and affirmed on the cross-bills. All the Justicesconcur.