Brown v. Matthews , 79 Ga. 1 ( 1887 )

Bleckley, Chief Justice.

The action was by the heirs at law of W. H. Lowe, deceased, Mrs. Brown, formerly Mrs. Lowe, suing in her own behalf and as next friend of her minor children. The defendants were the father and the brother of the deceased, together with their tenant, Matthews.

In the lifetime of the deceased, one Hardison owned certain lands, including the premises now in dispute. The deceased severally, or he and his father jointly, made a contract with Hardison for the purchase of some of these lands, and possibly of all, whether of the premises in dispute with the rest, is uncertain. In February, 1874, the deceased took from his brother a promissory note, due in the following December, which note expressed on its face that it was given for the payee’s “interest in the Hardison lands.” From that year forward the brother returned the premises in dispute for taxation as his own, and, so far as appears, the deceased did not return them at any time during this period, though he continued in life more than nine years. Moreover, the brother was in actual possession. Prior to 1876, Hardison executed no conveyance. In January of that year, he conveyed by deed directly to the father and the brother; but this deed, as then made, embraced only the other lands; it did not cover the premises in dispute. In September, 1877, Hardison conveyed the sepremises by deed to the deceased, and it was under this deed that the plaintiffs claimed title. No history of this deed — no explanation of how it came to be made, appears in the evidence. In or about January, 1883. a clause covering the premises in dispute was inserted in the deed from Hardison to the father and the brother, so as to make that deed purport to convey to them these premises as well as the other land. When this alteration was made, none of the witnesses to the deed were present. The deed had previously been recorded, and no corresponding alteration or insertion was made in the record. Whether the deceased procured Hardison thus to alter and enlarge the scope of the deed, was contested at the trial, but the overwhelming weight of the evidence was that he did. In March, 1883, the deceased made an entry in a book to the effect that he had received from his brother $730.00. Before that time, one or two credits had been indorsed on his brother’s note, but not enough by perhaps fifty per cent, to discharge the note, even treating the book entry as an additional credit. In' or about December, 1883, the deceased surrendered the note to his brother, but whether because it had been paid in full, or upon some agreement between them to rescind, is one of the questions in controversy. Not long after this transaction, the decéased died, leaving his brother in possession of the premises.

The defence was rested, not alone upon the general issue, but upon equitable pleas also. The jury found for the defendants; and a motion for a new trial made by the plaintiffs was overruled.

1. Numerous points are made upon the charge of the court, none of which we think sustainable. If we fail to discuss them in detail, it is because we look at the charge as a whole, and so regarding it, we are free from doubt as to its substantial correctness. Standing alone, various expressions in it would be amenable to criticism. A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall. The charge submits fairly to the jury three questions, to-wit: whether the land in dispute was paid for ;■ whether the altered deed was altered by procurement or with consent of the plaintiff’s husband; and whether the trade was ever rescinded. These three questions of fact exhaust the case.

2. The objection that there was no evidence of a joint purchase by the deceased and his father which included the premises in controversy, seems at first view well taken. But a study of the evidence with reference to its bearings and tendencies, has satisfied us that this fact might legitimately be drawn from it hv way of deduction or inference. It not unfrequently happens that the testimony proves more than any one witness knows, or than is known to all the witnesses taken together. This is so perhaps in every instance where the evidence, though sufficient, is only circumstantial. Where the evidence is all direct, the jury can be no wiser than the witnesses, but they have to be wiser in order to find the truth of any fact upon circumstantial evidence alone. Nor to justify a charge is it requisite that the evidence, whether direct or circumstantial, should be free from obscurity. To warrant the court in charging the jury on a given topic, such as whether certain land was included in a purchase by certain persons of other land, it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence. Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.

3. The testimony which rendered it certain that the deceased had procured Hardison to amend his deed to the defendants by inserting therein the premises now in dispute, was that of Mr. Haygood, an attorney at law, who detailed a conversation which he had with the deceased and his brother, or rather, which they had with him, touching the matter. This testimony was objected to as disclosing knowledge acquired under the seal of professional confidence. We agree with the court below in thinking that Haygood was neither employed professionally, nor consulted with a view to employment. He was raided,” not retained. To exclude declarations as communications to counsel, or made with a view to employment, their root in the relation, or contemplated relation, of client and attorney must be manifest. They must be the offspring of the relation, present or prospective, not of taking or expecting to take the fruits of such a relation without forming it. To tax a lawyer’s courtesy or liberality for advice or services is not to employ him. Generally, the test of employment is the fee. Furthermore, what is known to both parties is nota confidential secret in-a subsequent controversy between them. Burnside vs. Terry, 51 Ga. 186.

4. Amongst other pertinent evidence tending to account for the alteration in the deed, was the testimony of-Mr. Miller, now of counsel for the defendants, and the legal adviser of one of them (the brother) when the making of such a change in the deed was first suggested. Indeed, if the scheme of bringing the premises under the operation of that deed did not originate with him, he at least counselled his client how it ought to be carried into effect. The conversation in which he did this, and at which the deceased was not present, was objected to as inadmissible. It is true that what a person and his legal adviser say to each other is usually not pz-oper evidence to affect third persons, but here Miller’s evidence includes conduct as well as declarations. He shows that a business transaction was in contemplation; that the deed was examined with reference to that; that this examination disclosed the absence of these premises from the terms of the instrument, and, thereupon, that ho gave advice as to their inserlion. This explains how the brother came to take an interest in having the alteration made, and it was after this that the two brothers were together in conversation on the subject with Haygood. The conversation with Miller was a prelude to the conversation with Haygood, tends to account for it, and is a link in the chain of explanation touching the main fact — that is, the alteration of the deed. The alteration certainly occurred, and it was of vital importance to show how and why it occurred. When a relevant fact or act is to be accounted for, a conversation had by one of the litigating parties with a third-person-in the absence of the other, may account for it or serve as hlink in-the chain of explanation. If so, it is admissible in-evidence. But the application of this rule must be carefully guarded. We think the rule was properly applied in the present case. It may be that we are not accurate in treating Miller as retained counsel when he examined the deed and gave advice respecting its.alteration, but if so, it makes no difference. His testimony was equally relevant and admissible, no matter in what character he was then acting.

5. Some other evidence was objected to, and some illegal evidence was admitted over objection. Of this all that was the least material was withdrawn from the jury. It is complained that though ruled out, the court erred in not instructing the jury in the general charge not to consider or regard it. Doubtless, the better practice is to give such instructions, plainly and distinctly, at some timely stage of the proceedings, and it seems that some authorities elsewhere require it to be done. Howes vs. Gustin, 2 Allen, 403; Smith vs. Whitman, 6 Id. 562; Goodnow vs. Hill, 125 Mass. 587. But we believe an average jury in this State would always understand that evidence, after being ruled out or withdrawn, is no part of the case and ought to have no influence on the finding. There is no suggestion in the record that the act of the court in withdrawing this evidence was not open and public, distinct and unqualified, or that there was anything special to prevent the jury from comprehending it.

There was no material evidence admitted illegally, except that which was withdrawn from the jury before the charge of the court was delivered, and the fact of withdrawal plainly implying that it was not to be considered, there was no error in omitting to warn the j ury in the general charge not to consider it. In a civil case, if not in all cases, the evil done by suffering the j ury to hear illegal evidence is sufficiently corrected, as a general rule, by merely withdrawing the evidence or ruling it out.

6. The newly discovered evidence would not'change the verdict, and the verdict is already right.

Judgment affirmed.