Hobbs v. Houston , 195 Ga. 571 ( 1943 )

1. In this equitable suit by administrators to recover land conveyed by the decedent to one of the defendants, and conveyed by that defendant to the other defendant, and to cancel the deeds and recover a money judgment for damages and mesne profits, the evidence demanded a finding that the latter defendant, having sufficient notice of the plaintiffs' claim to the land, was not a bona fide purchaser. His status and rights as to the land are therefore controlled by those of his grantor.

2. While the grantor in a deed absolute on its face, who remains in possession of the land, may show by parol testimony that the instrument was intended only as security for indebtedness, the burden is on him to show that the instrument was not in fact what on its face it purported to be.

(a) Among several tests for determining whether a deed is absolute or only an instrument of security, the cardinal one is whether the relation of debtor and creditor remains, under which the grantor can still be held liable; or whether any debt involved in the instrument was extinguished by the conveyance in an actual purchase and sale. The fact that the grantor is given an option to repurchase at a future time for an agreed price will not of itself make the instrument one of security.

(b) Under the preceding rules, the form of the instrument here involved, with an express assumption of an outstanding security deed, and the evidence, the question as to the character of the instrument was for the jury, and a verdict thereon was not demanded for the plaintiffs.

3. Where, as here, there has been a general verdict for the defendants, and where under the evidence the jury may have treated the transaction as either one of absolute sale with an option for repurchase, or as a conveyance to secure an indebtedness, and where under either theory the evidence is in conflict as to whether the grantor paid to the grantee the full amount required, the verdict for the defendants would be authorized. That is to say, if the jury believed it was an absolute sale but with an option to repurchase, the evidence did not demand a finding that the terms of any such option had been complied with; and if the jury believed the instrument to be only one of security, the evidence did not require a finding that the debt had been extinguished.

4. Under the pleadings of the plaintiff administrators, the charge as given to the jury, and the exceptions taken to the charge or omission to charge, on the right of the plaintiffs to recover mesne profits or damages for trespass, such right of recovery was dependent on their right to recover the land itself. Since the verdict was against the plaintiffs on their right to recover the land, and therefore was in effect a finding that they were not entitled to mesne profits; and since under the preceding rulings and the evidence, the verdict as to the land was authorized, it is unnecessary to determine what, if any, rents, profits, or damages were recoverable by the administrators, if they had recovered the land.

5. Under the pleadings, the charge, and the exceptions, no question is presented or decided as to an accounting between the administrators of the decedent grantor's estate and his grantee, and as to any alleged credits to which the decedent might have been entitled, other than a full extinguishment of the alleged debt so as to entitle the administrators, under the petition and the charge as given, to recover the land and cancel the alleged security deed.

6. None of the twenty special exceptions, which are dealt with in the opinion, show any ground for reversal.

No. 14312. FEBRUARY 11, 1943. REHEARING DENIED MARCH 11, 1943. W. D. Royal and Hudson Hobbs, as administrators of the estate of David Hobbs, after the affirmance by this court of a nonsuit in the same court (190 Ga. 505, 9 S.E.2d 749), on their similar petition filed on April 26, 1937, filed a second petition in 1940 against the same defendants, G. L. Houston and J. W. Holley, to recover 173 acres of land in Worth County; and to cancel, as clouds on the title, a deed made in 1924 by the decedent, David Hobbs, to the defendant Holley, and a deed made on April 13, 1937, by Holley to the defendant Houston. The first deed, from the decedent to Holley, was in the form of an absolute conveyance with a general warranty, recited a consideration of $1200, and also provided that "this deed is made subject to a deed to secure debt on all the lands above described to secure . . $800 besides interest, given by grantor to Sylvester Banking Company, . . which grantee hereby assumes and agrees to pay, and the same constitutes a part of this consideration of this deed." The second deed, from Holley to Houston, for a cash consideration of $1500, contained a limited warranty only against claims of the grantor, his heirs and representatives. The petition sought to cancel the first deed on averments, that, although in the form of a deed of sale, it was in fact intended only as security for $1200 indebtedness by the decedent, who remained in possession until his death in July, 1931; that all of the debt and additional amounts, with a total of $4047.81, were paid by the decedent in his lifetime; that notwithstanding such payment, Holley fraudulently and wrongfully took possession of the land about January 1, 1932, and remained in possession through 1936, and until he sold the property to Houston on April 13, 1937; that on February 6, 1937, Hudson Hobbs was made temporary administrator, and on April 5, 1937, he and the other plaintiff, Royal, were made permanent administrators; that when Houston took title from Holley, Houston had actual notice and knowledge of plaintiffs' claim and the dispute as to the title, by previous statements made to him by plaintiffs, by his own knowledge of the previous litigation, by his signing as surety the bonds of plaintiffs as administrators, and by the fact that when he took his deed, plaintiffs were in possession of the land; and that under all these facts and circumstances Houston was not a bona fide purchaser, was estopped from claiming title, and occupied the same position as Holley. The second deed also was attacked on these grounds. It was further alleged, that, after the death of David Hobbs, Holley during his occupancy had collected rents and had sold timber and turpentine rights; that since Houston took title on April, 1937, he had received rents and profits through 1940, and used turpentine; and that the defendants were liable for these rents, profits, and damages.

The petition as amended alleged that it was "necessary to bring this equitable petition to avoid a multiplicity of suits, and in order that all rights of the parties hereto may beadministered in a court of equity;" and that "the plaintiffs offer to do equity;" and in addition to the prayers for the recovery of the property and cancellation of the deeds, prayed for a verdict and judgment against Holley "for all amounts alleged in this petition, received by [him] in excess of the original indebtedness of [decedent] to said Holley," and "for the value of the timber removed" by him; and a verdict and judgment against both defendants "for the value of rents and profits received by the said G. L. Houston, as well as the value of the turpentine taken from the timber upon said land during his occupancy of said land under the deed" from Holley.

The answers of the defendants denied all essential averments as to any title or right in the petitioners, and any fraud or illegal act. Holley set up that he went into possession upon delivery of the original deed, and decedent's occupancy was under him; that the transaction was one of sale, by which Holley received an absolute deed in consideration of his payment of certain debts and making advances, with the "privilege to [decedent] to redeem the property, defendant agreeing to resell it and reconvey it upon the repaying of said amounts of money paid to or to be paid out for the deed, provided this option to redeem should be exercised within a reasonable time thereafter, and this option was never exercised, and nothing ever done toward the exercise thereof;" that pursuant to this agreement Holley paid $867 to the bank whose security debt was mentioned and assumed by Holley in the deed in question, $1362.41 to another bank, and $140 to a named company, "the indebtedness against [decedent] and the property not being exactly determined but estimated by [decedent] at time of making said deed;" and that he had executed the second deed to Houston on the date and for the consideration alleged. The answer of Houston made similar allegations; and he further set up, that he had bought the land in good faith for $1500; that before buying he made known his purpose to both plaintiffs, and each "voluntarily expressed the wish . . that this defendant would be able to purchase the lands from the said Holley;" that "the said Hudson Hobbs, in the presence of the said W. D. Royal, readily accepted and agreed to [defendant's] proposition," to rent the land to Hobbs and others as defendant's tenants, "and gave this defendant written statement to that effect, which writing was witnessed by the said W. D. Royal, all without any protest or objection whatsoever," although Hobbs later refused to sign a rent note; and that the signing of the administrators' bond as surety was "for accommodation to Royal by reason of friendship."

The jury returned a general verdict "in favor of the defendants," on which a decree was entered in their favor and against the prayers of the petitioners. The plaintiffs excepted to the refusal of a new trial, on the general grounds and twenty special grounds.

The record presents these essential questions: (1) whether, regardless of the petitioners' right as against Holley to cancel the first deed by the decedent to Holley, the defendant Houston took the second deed from Holley as a bona fide purchaser, so as to be protected against such an attack; (2) whether, on its face or under undisputed evidence, the first deed from the decedent to Holley was an absolute deed with an option to the grantor to repurchase, or was only given as security for a debt; (3) whether, even if such deed was only one of security, all of the secured indebtedness was paid, so that title then became vested in the decedent and the plaintiff administrators of his estate, and plaintiffs would be entitled to a cancellation of the deed; (4) what if any mesne profits or damages for trespass or otherwise plaintiffs would be entitled to recover against the defendants, or either; and (5) what if any other relief plaintiffs would be entitled to recover under the pleadings, evidence, or the charge of the court with respect thereto, as to which no exception was taken. There are also special exceptions to the charge and to the exclusion and admission of evidence.

As to the first question — the pleaded writings were introduced, including the bonds and previous litigation, with the suit in which a nonsuit was granted. While the testimony was in conflict as to what was said between the plaintiff administrators and Houston with respect to the title and the intention of the administrators to file suit, the knowledge of Houston as to previous litigation and disputes between the plaintiff Hobbs and the defendant Holley, and as to Hobbs and the other plaintiff in actual possession of the land in question before Houston took his deed, appears to have been undisputed. As to the secondquestion, the character of the deed to Holley and possession thereunder, the parol testimony was in conflict as to the consideration and intention of the parties, whether the deed was one of absolute sale with an option to the grantor to repurchase, or merely given as security, and whether the decedent remained in possession of the land in his own right, or merely as tenant or agent of Holley. As to the third question — whether, if the deed was one of security, all of the indebtedness had been paid by the decedent — the evidence was in conflict. Holley testified, with supporting instruments and writings, including a memorandum (introduced without objection) showing in detail the amounts paid by him to the decedent or in his behalf, and amounts as follows: payments to banks, $2229.41; 1924 running expenses and payments, $495.06; 1925 running expenses and payments, $1602.15; 1926 running expenses and payments, $272; 1927 advances, $32 — a total for such items of running expenses, advances, and payments of $2402.21; and additional sums paid for taxes from 1925 to 1935 inclusive, amounting to $572.75 — making a complete total of $5202.38. Holley also testified, in addition to the deed transaction, that he agreed with the decedent to make advances to carry him, and had done so in the amounts stated; that besides this, he had paid the amounts claimed for taxes; and that although particular items, as claimed and testified for the plaintiffs, had been paid, the amount and items claimed by him as the original consideration for the deed had never been repaid. The plaintiff, Hudson Hobbs, and other witnesses gave testimony to the effect that both the original items and subsequent payments or advances for the decedent had been fully repaid by the end of 1926, and additional sums had been paid, which overpaid Holley in the amounts testified by Hobbs and claimed by the plaintiffs. On the fourth question, as to mesne profits and damages, it did not appear that Holley himself took possession of the land until January, 1932, after the death of the decedent; so that any alleged trespasses must have occurred between that time and the time of the administrators' appointment and Holley's deed to Houston, both in April, 1937. While the judge, in charging as to mesne profits and damages, instructed the jury not to allow to the administrators any such amounts as arose before theirappointment, because "they were not the proper persons to bring suit" therefor, he left to the jury the question as to allother "mesne profits or rentals as you find [plaintiffs] are entitled to," if they found plaintiffs were entitled to recover. As to the fifth question, relating to any other relief, the averments and prayers of the petition as amended, and the essential evidence thereon, were as stated. The judge submitted all of the questions raised by the pleadings: as to the character of the deed to Holley; as to the jury's right to consider oral testimony thereon; as to the reversion of title to David Hobbs, the decedent, if the deed was one of security and had been paid; and as to the cancellation of the original deed, if they found for the plaintiffs on these questions. As to the cancellation of the deed and relief against Houston, the judge fully charged the law as to bona fide purchasers and notice, and the pleading of the plaintiffs with respect thereto, but without using the word "estoppel" or "estopped" in connection with the pleaded contention that, by reason of this defendant's knowledge and acts as to the title, "under all the facts and circumstances herein set forth and set forth in their prior petition, he is not an innocent purchaser of said premises and is estopped from setting up adverse title to said premises." There is no exception to any failure by the court to charge on the question whether, independently of mesne profits or damages for trespass, the plaintiffs could recover any alleged overpayment by the decedent to Holley, representing any amount in excess of what was paid or advanced to or for the decedent. 1. If the defendant, who purchased the land involved from the codefendant after that defendant obtained the deed from the decedent, acquired title as a bona fide purchaser, the plaintiff administrators would not be entitled to recover the land or to cancel the two deeds. However, on the question of notice, a finding for the plaintiffs was demanded, since there was undisputed evidence as to the transferee's knowledge of previous litigation and disputes as to the title and right of possession, and as to the possession of the land by one of the plaintiffs (Irby v. Smith, 147 Ga. 329 (2), 93 S.E. 877) before and at the time the transferee obtained his deed, and of other facts sufficient to give notice of plaintiffs' claim; even though the testimony was in conflict as to what, if anything, the plaintiffs told this defendant before he took title as to their willingness for him to buy the property, or as to their intention to sue for its recovery. The status of the defendant transferee therefore depended on the status of his grantor, the codefendant, with regard to the instrument executed by the decedent.

2. On the question whether the deed from the decedent was an instrument of security for a debt, or an absolute deed of sale with an oral option to the grantor to repurchase, the Code provides that "A deed . . absolute on its face and accompanied with possession of the property shall not be proved . . by parol evidence to be a mortgage only, unless fraud in its procurement shall be the issue to be tried." § 67-104; Powell on Actions for Land, 519 (§ 388). But if the grantor remains in possession, he may show by parol evidence that the deed, though absolute in form, was actually intended only to secure an indebtedness.Hand v. Matthews, 153 Ga. 75, 78 (111 S.E. 408), and cit.;Paulk v. Dorminey, 154 Ga. 785 (115 S.E. 488). Upon repayment of the debt, such a grantor would be entitled to have the deed canceled as a cloud on his title. Blankenship v.Cochran, 151 Ga. 581 (107 S.E. 770), and cit. The presumption, of course, is that the instrument is what it purports on its face to be, an absolute conveyance; and the burden is on the grantor to show otherwise. 4 Pomeroy's Eq. Jur. (5th ed.), 586, § 1196, and cit.

In determining the character of the instrument, "It is a well-settled rule of law that parties may, if they please, really and truly sell property for a consideration actually passing, and at the same time secure the right to repurchase it at a future time for an agreed price, and if this be really the intent of the parties, the law will enforce it. It is also true that the difference between such a transaction and a mortgage is often a very nice one; and that the courts will scrutinize the matter very closely to discover whether there was, in fact, anything more intended than to provide a security for money due or advanced at the time, and all the facts will be looked to in search of the truth of the case. The great cardinal rule for testing the intent seems to be whether or not the relation of debtor and creditor was intended to exist between the parties — whether the property was taken in satisfaction and discharge of the sum due or advanced; or whether, notwithstanding the words of the conveyance, the relation of debtor and creditor was still to exist, to wit: the right of the one to demand, and the obligation of the other to pay." Spence v. Steadman, 49 Ga. 133 (2), 138, and cit.; Jay v. Whelchel, 78 Ga. 786, 787 (3 S.E. 906); Galt v. Jackson, 9 Ga. 151, 156; Felton v. Grier, 109 Ga. 320 (35 S.E. 175); Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 (2), 506 (150 S.E. 828); 4 Pomeroy's Eq. Jur., 573-588 (§§ 1194-1196).

Under the preceding rules — on the question as to the character of the instrument, a finding for the defendant grantee, that the deed was absolute with an option to repurchase, was authorized. The form of the instrument was that of an absolute warranty deed. Besides stating a cash consideration, it contained an express assumption by the grantee of a described outstanding security deed, as is common in absolute conveyances, instead of merely reciting that the instrument was given subject to the prior security deed, as is common in security deeds or mortgages. Although there was parol testimony for the administrators, which might have been taken to indicate an intention by the parties to make the instrument one of security, rather than a purchase with an oral option to the grantor to repurchase on payment of all expenditures by the grantee, and there was testimony as to the grantor's continued possession of the land in his own right until his death, and also testimony that the value of the land considerably exceeded the consideration stated in the deed, there was controverting testimony for the defendants that the transaction was an absolute sale in consideration of what the grantee had expended and had agreed to expend for the grantor, and that the grantor's possession was merely as tenant or agent for the grantee. See, in this connection, Wiggins v.Sheppard, 145 Ga. 835 (b) (90 S.E. 56); DeLaigle v.Denham, 65 Ga. 482, 490, 491. Besides this conflict in testimony, although the decedent's son, one of the administrators, testified that all of the alleged debt to the grantee was fully paid by the decedent before 1927, that the decedent did not die until 1931, and that the grantee did not take possession until 1932, it does not appear that the grantor took any action before his death to cancel the deed, or that the administrators brought any proceeding until 1937 to recover the land or cancel the instrument. No question of laches is raised in the record, but this lapse of time after the alleged repayment was a circumstance which could be considered in determining both the question of intention of the parties with regard to the character of the instrument, and the question whether the decedent had fully paid or repaid to the grantee all of the amount required.

3. On the question whether the decedent paid or repaid to his grantee the full amount required — the grantee's plea, while denying that the instrument was given to secure an indebtedness, admitted an agreement to resell the property to the decedent for the amount of moneys paid to or for the decedent, provided this option should be "exercised within a reasonable time thereafter;" but denied that this option was ever exercised. Therefore the plaintiff administrators were entitled to show, if they could, a full payment of such amount, whether the instrument was an absolute deed or one of security. However, the evidence on the question of full payment was in conflict, and the finding for the defendants on that question was authorized under either theory of the case.

4. The plaintiff administrators of the grantor's estate having alleged that their decedent remained in possession of the premises after the execution of the instrument, as it was necessary for them to do in order to show that the deed was not absolute in fact as well as on its face, they did not seek to recover and manifestly could not have recovered mesne profits during the life of the decedent, when, as alleged, he remained in possession. They alleged, that the decedent grantor paid off the entire debt during his life; that after his death, the grantee wrongfully took and held possession for five years until he executed his deed to the defendant transferee; that the yearly rental value of the premises was a stated amount; that timber and turpentine were used, rendering the defendants liable in trespass; that the purpose of their suit is to take possession of the lands "for the purpose of selling same and to collect the rents, issues, and profits for the purpose of paying debts and making distribution to the heirs" of the decedent. While they pray for a recovery of the "value of the rents, issues, and profits . . as well as the value of the turpentine and timber from the land," the petition as amended contains no prayer for an accounting or for general equitable relief. Nor is it anywhere alleged that the rents, issues, and profits received by the grantee from the decedent constituted either in themselves or added to other payments an amount sufficient to satisfy the decedent's debt, so as to entitle the administrators to a recovery of the land and a cancellation of the decedent's deed. While the administrators except to a charge excluding their recovery of rents and profits or damages for trespass during the period between the death of the decedent and the appointment of the administrators, under the ruling of the judge as stated to the jury, that the administrators were not the proper persons to sue for such mesne profits and damages accruing during that period, neither the petition nor the exception to the charge is based on any contention or theory that the jury should have been allowed to consider such amounts as going in extinguishment of the grantor's debt, and in determining whether or not the debt had been paid. Carrying out the theory of the plaintiffs' claim as made by their petition, the judge charged, with respect to other mesne profits as might have accrued after the appointment of the administrators, that they, of course, would be awarded only "in case the plaintiffs recover in this suit." To this charge, conformably with the claim as made by the petition, no exception was taken. If it should be assumed that the petition might have been so framed or amended that any proved allowable mesne profits could have been applied by the jury in extinguishment of the decedent's indebtedness, rather than being limited to the claim as expressly set forth in the petition, no amendment was offered. While it is a well-recognized rule that a judgment will not be reversed, if supported by the evidence, where a proper amendment to the pleadings, if it had been made, would have caused the pleadings and the evidence to conform, we know of no rule which would justify the setting aside of a verdict and judgment because the pleadings might have been so amended as to make the contentions and the evidence conform, especially where, as here, the charge was in conformity with the unamended petition, and such charge is unexpected to.

Accordingly since, under the administrators' pleadings and the charge as given, the verdict was in effect a finding that the administrators were not entitled to recover the land, and therefore were not entitled to any mesne profits or damages for trespass, which were sought to be recovered as such, it is unnecessary to consider the questions, sought to be raised in this court, as to what if any rents, profits, or damages the administrators might have recovered if the land had been recovered. As to these questions, see Jones v. Wilson,195 Ga. 310 (24 S.E.2d 34), and cit.; Hoyt v. Ware,156 Ga. 98 (6), 102 (118 S.E. 734); Collins v. Henry,155 Ga. 886, 890 (118 S.E. 729); Zeagler v. Zeagler, 190 Ga. 220 (4), 223 (9 S.E.2d 263); James v. Riley, 181 Ga. 454 (2) (182 S.E. 604); Allen v. Macon, Dublin Savannah R. Co., 107 Ga. 838 (1-3), 844 (33 S.E. 696); Craddock v. Kelly, 129 Ga. 818 (5), 826 (60 S.E. 193); Autrey v. Autrey, 94 Ga. 579 (2) (20 S.E. 431); Lee v. Moore, 37 Ga. App. 279 (139 S.E. 922); Roberts v. Kite, 33 Ga. App. 91 (125 S.E. 719);Hefner v. Fulton Bag Cotton Mills, 39 Ga. App. 728, 729 (148 S.E. 355); Smith v. Fischer, 52 Ga. App. 598 (1-3), 599 (184 S.E. 406); 28 C. J. S. 1040 (§ 150, c), and cit.; Code, §§ 113-901, 113-907, 33-104, 33-105; Powell on Actions for Land, 542-544, §§ 409-412.

5. The petition as amended constituted a suit for recovery of land, cancellation of deeds, recovery of damages and mesne profits, and recovery of excess payments over the full amount of the alleged debt of the plaintiffs' decedent. The suit was not in form or substance one for an accounting for payments made on the indebtedness, represented by what the plaintiffs claim to have been a security deed, or an accounting for payments made on the purchase-price of the option, as the defendants set up in their pleadings had been given to the plaintiffs' intestate upon the execution of what the defendants claim to have been an absolute deed. Nor does the petition allege or pray that any mesne profits received by the defendants after the death of the decedent grantor, during the only time they are alleged to have been in possession of the land, should be applied in extinguishment of the decedent's original debt, if not already extinguished by the decedent as alleged. Nor does the petition pray for general relief. Therefore the rulings here made go no further than to hold that the jury were authorized to find, under either theory of the case, that the administrators were not entitled to a recovery of the land or a cancellation of the deeds. As to what amounts, other than a failure to fully extinguish the amount required, as set forth by the petition, had or had not been paid under any theory, the court did not submit to the jury; no verdict was rendered thereon; and the plaintiffs do not except to any failure to submit such questions or to charge thereon. Accordingly, as to these questions no adjudication is made.

6. There are twenty special grounds, relating to instructions and the absence of certain instructions to the jury, certain procedure in the trial, and admission and exclusion of evidence. The 12th exception, made to a charge that excluded recovery of rents and profits or damages for trespass during the period between the death of the decedent and the appointment of the administrators, is controlled by the 4th preceding ruling under the general grounds.

7. Exception is taken to a failure to charge, without request, on the question of estoppel against the defendant who purchased from the decedent's grantee. The administrators pleaded in their amended petition that this transferee, Houston, bought the property for $1500, but was not a bona fide purchaser, because he had knowledge of the plaintiffs' claim: by information given him by the plaintiffs; by his knowledge of the previous litigation between his grantor, Holley, and Hudson Hobbs, a son of the decedent, who is one of the administrators; and by the transferee's signing of the administrators' bonds and having knowledge that the purpose of the administration was to sue for the land and cancel the deed from the decedent. The plaintiffs further pleaded that the defendant transferee "is estopped by all the circumstances from claiming title to said lands;" and that "under all the facts and circumstances herein set forth . . he is not an innocent purchaser of said premises and isestopped from setting up adverse title to said premises." There is no merit in this ground, especially in the absence of a request, for the reason that the court did in fact fully charge plaintiffs' contentions as to notice had by this defendant and the rules of law relating to bona fide purchasers and notice; and the question of estoppel, as pleaded, was dependent on these contentions and the law as thus charged. Under the law as given in charge, if this defendant had the notice pleaded, he could prevail only if the original grantee could have prevailed; and this is all that the plea of estoppel amounted to. This ruling is not altered by the fact that the judge did charge as to thedefendant's plea of estoppel against the plaintiffs, by having told the defendant transferee that they would be glad for him to buy the property, to which instruction there was no exception.

8. There was no abuse of discretion, and no error of which the plaintiffs can complain, in the court's allowing one of defendants' counsel, after the close of arguments, "to submit himself to [plaintiffs' counsel and the] court for cross-examination," for the reason then assigned by such defendants' counsel that plaintiffs' attorney "has charged me in his argument with unlawful and disgraceful actions." This is true, since the record does not show what argument impelled this action, and a broad discretion in such matters is vested in the judge; and since the record shows that plaintiffs' attorney did in fact avail himself of this offer to cross-examine the defendants' attorney.

9. The court did not err in excluding testimony by one of the administrators as to the "purpose" and the "sole purpose" of the administration being "to take possession of the land," over the objection that "the record is the highest and best evidence;" since the law fixes the right and duty of administrators, and since the evidence showed the present and previous suits of the administrators evidencing their purpose to recover and obtain possession of the land.

10. Exceptions were taken to the admission of testimony by the defendant Holley, the original grantee, that before the decedent executed the deed to him, the decedent and his wife told him that they were in "very distressful conditions;" that the decedent made the deed for the consideration that certain stated debts and obligations of the decedent would be paid or assumed by Holley; and that Holley agreed to furnish the decedent supplies for operating the land, took care of the decedent, and supplied his wants. The basis of these exceptions is that this evidence related to conversations and transactions with a deceased person. There is no merit in these grounds, since both sides, without objection, freely introduced evidence relating to the entire transaction and conversations between the decedent and his grantee; and there was not only documentary evidence but testimony by Holley, admitted without objection, similar to that excepted to in these grounds.

11. No prejudice to the plaintiffs appears in the admission of testimony from the defendant Holley as to what the decedent had told his wife, and as repeated by her to Holley, with regard to later adding fifty acres of land to the land covered by the deed from the decedent to Holley, over the objection that the testimony was hearsay. This is true since the witness gave similar testimony, without objection, as to acquiring from the wife an interest in this fifty acres; and since that acreage was not involved in this suit, and it is not made to appear how the testimony could have prejudiced the plaintiffs.

12. Nor does any injury to the plaintiffs appear from the admission of testimony by the defendant Holley that certain timber on the place was cut in order to purchase a mule for the decedent's wife and those left by him on the place after his death.

13. Seven special grounds attack the admission of certain tax receipts issued to the defendant Holley, and a canceled check, showing payments of taxes in 1926, 1935, and 1936, and of other canceled checks signed by Holley, payable to various persons, and of a mortgage note from him to a fertilizer company, marked paid. The grounds of exception are that the writings did not indicate upon what land the taxes were paid, or the payments were made, or for what purpose the money was used; and that such payments might have been made on lands of Holley other than that involved in this case. There is no merit in these grounds, since a memorandum statement made by Holley, showing in detail all of the moneys he claimed to have paid out to or for the decedent, was introduced in evidence without objection, and he swore in general terms, without objection, that this statement was true and correct; swore that the items covered by the alleged consideration of the deed from the decedent had never been paid; and swore as to the correctness of particular items in the statement. Although the writings objected to did not on their face indicate their specific purpose, their connection with the matters in dispute was sufficiently shown by the testimony stated.

14. Irrespective of the materiality of certain warranty deeds and of a security deed from heirs of the decedent grantor, including the decedent's son who is one of the administrators, to one of the plaintiff administrators' attorneys — which were admitted on the contention of the defendants that the deeds tended to show by the amounts of their consideration a smaller value of the land than that contended by the plaintiffs, — no reversible error appears in the admission of these instruments, since they purported to represent only usual and legitimate transactions between the parties thereto; and even if they were not pertinent to the issues of the case, it does not appear how they could have been prejudicial to the plaintiffs.

15. The plaintiff administrators except to the admission of a writing delivered to the defendant transferee, Houston, signed by Hudson Hobbs, who was the decedent's son and one of the administrators, and witnessed by the other plaintiff administrator. This writing, made on the same day but after the deed from the defendant Holley to Houston, stated that Hobbs would thereafter occupy the land as tenant of Houston. The only objections to this writing were: (1) that it was signed "under pressure and fear," and (2) that the signer could not waive or release any of his rights as administrator. There is no merit in the first objection, since the testimony of the signer wholly failed to show any duress; and even if such testimony had shown duress, it would have been no ground for excluding the paper, since the testimony was contradicted by Houston, and the conflicting testimony would have raised a question for determination by the jury. Nor is there any merit in the second objection, since the writing did not purport to waive or release any right as administrator. Under the evidence, the signer, as the decedent's son, one of his heirs, had been living on the land prior to the transfer and receiving supplies furnished by the transferee, Houston. As an heir, he could have agreed to occupy the land as tenant of the transferee, irrespective of any right as administrator. There was no objection to the writing on the ground of irrelevancy. Its admission in evidence related only to the question whether Houston was a bona fide purchaser. Since, under the first ruling, the evidence demanded a finding that he was not such a purchaser, but that his rights were controlled by those of the codefendant, the admission of this evidence would in no event afford ground for reversal.

16. There is no merit in the special ground, that quoted testimony by the defendant Holley was erroneously incorporated in the record by a ruling of the court, under the reporter's note that such testimony had been "delivered . . by agreement of all parties," although in fact such testimony had been delivered out of the presence of the jury after they had "retired from the box for the night." The admission of this testimony into the record, though not before the jury, could not possibly have affected the verdict. There is no exception in this or any other ground that a different finding on any controlling issue would have been required without such evidence; and the fact that it was delivered "by agreement of all parties" was not controverted.

Judgment affirmed. All the Justices concur.