Hall v. Butler

Eish, C. J.

(After stating the foregoing facts.)

1. ' The motion for new trial contained the general grounds that the verdict was contrary to evidence, and without evidence to support it, and was contrary to law and the principles of justice and equity. There was ample evidence to authorize the verdict. In the brief for the plaintiffs in error it is contended, under the general grounds of the motion for new trial, that a new trial should have been granted because it appeared that the petitioner had not come into the court of equity with clean hands, by reason of the purpose for which he executed the instrument sought to be canceled, and on account of his long delay in asking for this relief. The petition set forth the plaintiff’s case, and he submitted evidence sufficient to authorize the jury to find in his behalf. There was no demurrer to the petition, and, so far as the record discloses, no point was made on the trial as to the plaintiff’s fraudulent purpose in executing the deed to his wife, or as to his delay in bringing an actión for the cancellation of the paper..

2. The plaintiff testified: “I never did deliver the deed to anybody. I never authorized anybody to deliver this deed to anybody; it has never been delivered to anybody with my consent. No person ever took possession of this land under this deed. Mrs. Butler, my wife, never did have this deed in her possession or in her hands in her life, in my presence. She never did have this deed in her possession or in her hands, with my consent or knowledge. "My wife never did have this deed in her possession at any time when Mrs. Hall was present, or when any discussion was up about selling the land; not when I was present.” This testimony was admitted over the defendants’ objection on the ground that the witness was incompetent to testify as set forth, because Mrs. Butler, to whom the deed purported to have been made, was dead, and that the witness, being a party to the action, was incompetent to testify as to transactions and communications between himself and his deceased wife. The witness was not incompetent, and the court did not err in admitting the testimony. Paragraph 1 of section 5858 of the Civil Code declares: “Where any suit is instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, transferee, or by 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 plaintiff and the defendants were heirs at law of Mrs. Butler. The defendants, however, were not indorsees, assignees, transferees, or personal representatives of Mrs. Butler, so as to render the plaintiff an incompetent witness, in this action, as to transactions or communications with his deceased wife. In Boynton v. Reese, 112 Ga. 354 (3), 357 (37 S. E. 437), it was held: “A grantee in a deed against whom a petition for the cancellation thereof is brought by an heir at law of the grantor is not, because of the fact that such grantor is dead, disqualified from testifying as to communications and transactions between the deceased and the witness leading up to the execution of the instrument.” Like rulings were made in the following cases: Oliver v. Powell, 114 Ga. 592 (5), 601 (40 S. E. 826); Causey v. White, 143 Ga. 7 (3), (84 S. E. 58); Goddard v. Boyd, 144 Ga. 18 (85 S. E. 1013); Rudulph v. Washington, 146 Ga. 605 (91 S. E. 560).

The decision in Harrison v. Perry, 86 Ga. 813 (13 S. E. 88), was based on the act of 1866, which provided that “where one of the original parties to the contract or cause of action in issue or on trial is dead, or is shown to the court to be insane, or where an executor or administrator is a party in any suit on the contract of his testator or intestate, the other party shall not be admitted to testify in his own favor.” This act was changed by the act of 1889, as amended by the act of 1893, now embodied in the Civil Code, § 5858, par. 1.

The testimony to the effect that the witness never delivered the deed to anybody, nor ever authorized anybody to deliver it, and that it was never delivered to any one with his consent, was not subject to objection that it was the mere expression of his conclusion.

3. Exception to the following charge was one of the grounds of the motion for new trial, viz.: “fI charge you that if E. A. Butler executed the deed, signed .it in the presence of witnesses, and bad it recorded in the county where the land lay, this would be prima facie evidence that it was delivered; that is, such evidence as would authorize the jury to believe that it was delivered, unless there was some evidence showing that it was not, and that E. A. Butler did not intend to make and deliver it by -what he had done.” The exception to this charge was that in using the words “some evidence” the court thereby instructed the jury that the onus would be shifted if “some evidence” was introduced by the plaintiff showing that he did not intend to make and deliver the deed in question. We do not think this a fair criticism of the charge. The instruction was to the effect that the prima facie case stated by the court would be overcome if there .was “some evidence showing” to the .contrary, not merely that such prima facie case would be overcome if any evidence submitted tended to show the contrary. “Evidence showing the contrary” means evidence proving the contrary to be true. At any rate, in view of the clear, explicit, and concrete instructions given to the jury, we are of the opinion that this ground of the motion did not require the grant of a new trial.

4. The requests to charge, in so far as they embodied correct and pertinent legal principles, were covered by the explicit, correct, and concrete instructions on the issues in the case.

Judgment affirmed.

All the Justices concur, Atlcinson, J., specially.