Stewart v. Ellis , 130 Ga. 685 ( 1908 )

Lijmpkin, J.

(After stating the facts.)

1. The controversy was between one who held a bond for title from a deceased person, and the widow and children of the latter, who claimed the- land involved, as having been set apart to them as a year’s support. The plaintiff was allowed' to testify as to the •amount which she owed the decedent. Objection was made to this, •on the ground that she was an incompetent witness on that subject. No personal representative of the deceased obligor was a party to the case, nor was any endorsee, assignee or transferee. His widow .and children, who claimed the property byvirtue of having had it set apart as a year’s support to them, did not in law occupy any of these positions; and the code declares that no exceptions to the rule rendering witnesses competent shall be allowed except those stated in the law itself. The point has been expressly ruled in Gunn v. Pettygrew, 93 Ga. 327 (20 S. E. 328). And see also Civil Code, §§5269, 5270 ; Harris v. Whitney, 112 Ga. 633 (37 S. E. 883).

2. The judge ruled out certain evidence as to the value or price of cotton at a specified, time, but subsequently allowed the same witness who was then vbeing examined to testify as to its value. If there was any error, it was substantially cured, and did not remain so as to require a new trial.

3. Exceptions were taken to several charges of the court on the subject of 'whether the bond for title was so worded as to make time of the essence of the contract, and, if so, whether the obligor waived any forfeiture or loss of position by subsequently bringing suit or seeking to enforce the debt covered by the bond, or a ¡Dart of such debt. If time is of the essence of a contract, it may be waived; and subsequent conduct of the obligor may have that effect, such as suing for the purchase-money which would be due under the bond for title, or other like conduct, instead of treating the contract as at an end. Jordan v. Rhodes, 24 Ga. 478 ; Chapman v. Ayer, 95 Ga. 581 (23 S. E. 131) ; Moody v. Griffin, 60 Ga. 459. When the charges on this subject which are complained of are read in the light of the evidence and of the entire charge, they do not contain’ reversible error.

4. A wife is not liable for the debts of her husband, and can not render herself so by assuming them. But if she gives a note for the debt of her husband, and suit is brought and judgment recovered thereon, she can not thereafter set up the fact that the debt was that of her husband. She is concluded on this subject .by the judgment. The court so charged in substance, and his charge, when taken altogether, did not present any such inaccuracies as to require a new trial.

5. This case was not a suit on the notes, but arose on an equitable petition filed by the wife, who had signed them. In one portion of his charge the judge inadvertently stated that the burden, was on “the defendant” to show what part of the consideration of the notes represented the debt of the husband, if any. But the immediate context showed that this was a mere lapsus linguae, a patent inadvertence, and one which could not have hurt the defendant. The judge at once proceeded to state to the jury that “if the plaintiff is unable to show what part of the notes represents the debt of the husband, and what part represents her debt, then she would have no right to a reduction on .that account, but would be liable for the whole amount of the notes, if she executed and delivered them.” In the light of its context, this mere verbal sli*p could not have done any harm, and does not require a new trial. Southern Bell Tel. Co. v. Jordan, 87 Ga. 69 (13 S. E. 202) ; Blackshear v. Dekle, 120 Ga. 767 (48 S. E. 311) ; Southern Ry. Co. v. Merritt, 120 Ga. 409 (47 S. E. 908).

6. An examination of the other grounds of the motion for a new trial, in the light of the evidence- and of the entire charge, fails to disclose any reversible error. There is nothing in these grounds which requires elaborate discussion. The justice of the peace before whom the forcible entry and detainer proceeding was begun was made a party defendant along with the plaintiff in such proceeding; but no question was raised or decided in regard to it, and we will not deal with it.

Judgment a'ffirmed.

All the Justices concur.