Powell v. Watts

Hall, Justice.

3. The plaintiff mfi.fa. proposed to prove a conversation with the defendant which he communicated shortly after it took place to the claimant. It appeared that the defendant was dead at the trial, and on that ground the court, on direction, excluded the conversation between the plaintiff and defendant, and allowed only what was said by the claimant in reply thereto to go to the jury. There could have been no objection to the competency of admissions made by the claimant to the plaintiff of matters affecting the title to the property in controversy between them; .the plaintiff was clearly entitled to it, as well as to all the conversation therewith connected. Code, §3791. This is a familiar and indisputable principle. “ The plaintiff was entitled to have the whole of the conversation that took place between the parties at the time given in evidence, so that the jury might judge of its weight and effect,” says Warner, C. J., in 47 Ga., 147; Ib., 642, 647. Had the conversation between plaintiff and defendant been reported to claimant, and had he acquiesced therein or remained silent when the circumstances required an answer or denial, this of' itself might have amounted to an admission. Code, §3790. Whether this-conversation was admissible, had it not been communicated to the claimant, is immaterial to the question under consideration, and so far as it concerns that, it need not be decided. It seems that it was repeated to him shortly after it was held, and that the plaintiff was referred to him and other children of the defendant, to whom he had conveyed nearly all of his property, to make provision for the payment of his claim. It may be possible, and indeed is highly probable, that the conversation and its communication were but parts of an entire transaction, which went to make up the res gestæ. 51 Ga., 531.

2. Whether admissions made by the defendant, while in possession of the land claimed, in disparagement of his title, are competent, would, in some measure, depend upon the time at which they were made. • If made, as it seems probable they were in this instance, before the commencement of plaintiff’s suit, then there would, we think, be little doubt of their admissibility (8 Ga., 66, citing Geo. Dec., part 1, p.44 ; 20 Ga., 210, 240 ; 28 Id., 170), even in favor of the claimant; but it admits of some more question, whether, in a contest between him and the claimant, where the rights of no third party had intervened, the latter could be affected by his declarations, made possibly after he had parted with the title. Code, §3774, and citations. This, however, though insisted upon, is not the point, where the rights of a creditor are involved; the defendant is in possession contrary to the terms of the conveyance ; he attempts to disclaim a title which he had when this debt was created, and the only question between the creditor and the claimant under his debtor is> whether the former has parted with, and the latter has bona fide acquired, title to the property on which this credit was given. The possession, coupled with declarations made under the circumstances, afford some evidence of the character of this transaction between father and son.

Oonceding the competency of the testimony, however, it is insisted that, inasmuch as the party making the. declarations was dead, the plaintiff could not testify as to them. It is not disputed, where one of the original parties to the contract or cause of action in issue or on trial is dead, or where an executor or an administrator is a party in any suit on a contract of his testator or intestate, that the other party cannot testify. Code, §3854, par. 1. But it is contended that no contract or cause of action, to which. the defendant in execution was one of the original parties with the plaintiff, is in issue or on trial here, at least none, to which his executor or administrator could be made a party in his stead; that this is an issue between the plaintiff and the claimant alone, in which the defendant infi. fa. has none but a collateral and remote interest, if any 5 and that by the terms of the Code, as cited above, the plaintiff is not excluded from testifying. The case of Anderson vs. Wilson, 45 Ga., 25, is directly in point, and fully sustains the plaintiff’s position.

3. There was no error in admitting the claimant to testify, as we expressly held in two cases, Scott vs. Mathis and White et al. vs. White, decided at the last term of the court.

4. Neither was there material error, if any at all, in permitting claimant to testify as to his motive in purchasing the property. Brown vs. Spivey, 53 Ga., 156, 158. His disavowal of any improper purpose would be subject to correction under the evidence in the case going to show to the contrary, under proper instructions from the court, which were doubtless given, as no complaint is made in reference thereto.

5. That the admission of verdicts in cases between plaintiff and other parties acquiring title to portions of defendant’s property at the same time claimant got his conveyances, finding the property in those cases not subject, was an error, the court admitted, and endeavored, as far as he Could do so, to repair any injury done the plaintiff thereby. Whether he succeeded in removing any impression prejudicial to the plaintiff may well be questioned ; but as the case necessarily goes back for another hearing, and as this wrong, whatever it may amount to, will not be repeated, we deem any further notice of the point unnecessary. As a general rule, where illegal testimony is admitted, and afterwards withdrawn with a caution to the jury not to regard it, the verdict will not be set aside, except in a case where it is probable that the caution was disregarded. This is the extent to which a majority of this court went, in McDonald vs. The State, at the last term of the court.

We express no opinion as to the testimony in the case for obvious reasons, and order another trial in accordance with the principles here laid down.

Judgment reversed.