1. It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence of the fact, although there is written evidence thereof, where the essential fact to be proved is neither the existence nor the contents of the writing but the existence of the independent fact itself, to which the writing is merely collateral or incidental.
2. A perfect equitable title, resulting from full payment of the purchase-money, will support an action in ejectment. A renewal suit brought in ejectment on the theory that the full purchase money was paid subsequently to the execution and delivery of a bond for title does not show the election of a remedy inconsistent with a suit in ejectment brought on the theory that the full purchase-price was paid prior to the execution and delivery of the same bond for title.
No. 15405. FEBRUARY 21, 1946.
To the March term, 1939, of Coffee County Superior Court Emmett L. Peterson brought an action in ejectment against Stanford Lott to recover a described city lot and mesne profits. As here necessary he alleged: That he purchased the land sought to be recovered from B. Peterson in 1907, and paid him the full purchase-price therefor. He took no deed, but in connection with his purchase the grantor executed and delivered to him a bond for title. He was interested in a partnership which was financially involved and wanted to settle its affairs before taking his deed. He attached to his suit a copy of the bond for title, which obligated the maker to convey to him the described land on payment of two notes for $500 each, due six and twelve months after date. He amended his petition by alleging that B. Peterson had given him a note on or about April 6, 1906, and that on May 20, 1907, he purchased the land in controversy and paid for it by extinguishing the obligation evidenced by the note, which was for $1000. The record shows that the petition was further amended by having counsel, in open court, attach a sheet to the face of the first amendment, alleging that on or about March 23, 1915, the full purchase-price
for the land was paid to B. Peterson. During the trial, at the October term, 1939, a nonsuit was granted on the grounds that the evidence did not show that the bond for title had been complied with, and that the plaintiff would not be heard to controvert the terms of the bond for title by showing full payment of the purchase-price prior to the date of the bond. On February 20, 1940, after paying the accrued costs, the plaintiff renewed his suit in ejectment in the same court, against the same party and for the same cause of action. The defendant vouched his warrantor, Lonnie A. Pope, into court as a party. In that petition, in so far as it is material here, he alleged: That he purchased the land from B. Peterson, and accepted a bond for title, copy of which he attached as an exhibit, obligating the maker to convey to him the land in controversy on the payment of $1000, which was fully paid during the latter part of 1911 by the settlement and extinguishment of the obligation of a note, dated on or about April 6, 1906, for $1000, due by B. Peterson to him. By amendment he struck his exhibit and all reference to the bond for title and alleged: That on May 20, 1907, he purchased the land in controversy from B. Peterson, and paid him the full agreed purchase-price of $1000, by the cancellation of an obligation evidenced by a note for that amount, due by B. Peterson to him. The plaintiff was unable at that time to surrender the note because it had been lost or misplaced. The land was then a vacant city lot, but constructive possession of it was delivered to him. He and B. Peterson measured it, set up corners, and full title was at that time vested in him. Pending efforts to locate the note, B. Peterson was to return the lot for taxes, along with his lands, and no interest was to be charged on the note. About March, 1915, which was just a short time prior to the death of B. Peterson, the plaintiff gave his written receipt to him for the note. The receipt showed the full payment of the land in question by extinguishment of the obligation of the note. B. Peterson at that time agreed to execute and deliver to him a proper deed for the land in controversy, but died without having ever done so. After giving a receipt for the note, the plaintiff returned the land for taxes and annually paid them. This suit (as alleged) is a renewal of one between the same parties, in the same court, and for the same cause of action, nonsuited at the October term, 1939. The renewed suit went to trial
at the October term, 1945, and after the plaintiff had introduced his evidence and rested, the defendant, for the first time, presented a writing which he denominated "his defense of waiver by election." To this writing he attached as exhibits: (1) the original petition filed to the March term, 1939, together with the amendment thereto; (2) the demurrer thereto, with the order overruling it; and (3) the judgment of nonsuit. The averments of the writing were that the plaintiff in the first case had based his suit on the affirmance of the bond for title, and the renewed action on the inconsistent position of an abandonment or disaffirmance of the same bond for title; and that the first suit had been instituted and prosecuted with knowledge of all facts necessary to show the election of a remedy inconsistent with the one now here employed. The court entered this order: "The within defense having been sustained by evidence, and no counter-showing having been made by the plaintiff, it is ordered that the plaintiff's petition, as amended, be and the same is hereby dismissed." Exception was taken to this order, and the case comes to this court on a direct bill of exceptions.
1. The plaintiff introduced in evidence, without objection, numerous tax receipts for State, county, and city taxes, canceled checks and drafts which he had issued for the payment of taxes, and notices of tax assessments sent to him; and he undertook to prove by parol evidence their relation to the property in controversy. Objection was made to such oral testimony on the ground that the original tax returns and assessments made would be higher and better evidence, which objection was sustained. Whatever probative value the documents may have had was to show that the land in controversy had been assessed for taxes as the plaintiff's property, and that he had paid taxes on the same. It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence thereof, although there is written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is
merely collateral or incidental. In such a situation the rule requiring production of original writings has no application. 20 Am. Jur. 366 § 405. On a question of payment, while documentary evidence as to the manner of payment, such as a receipt or canceled check, would add probative value to the proof relied on to establish the payment, the act itself is the essential fact to be shown. Armour Fertilizer Works v. Dwight, 22 Ga. App. 144
(95 S.E. 746). Accordingly, it was error not to admit parol evidence that the documents admitted related to assessments made and taxes paid on the land in controversy. Hicks v. Hicks,196 Ga. 541 (27 S.E.2d 7).
2. The Code, § 3-508, expressly recognizes the right of the plaintiff to recommence his suit on the payment of costs, after he has been nonsuited on a previous action. And § 3-808 saves his right for six months as against the statute of limitations. The election and prosecution of an available remedy is a bar to the pursuit later of an inconsistent one. Hardeman v. Ellis,162 Ga. 664 (135 S.E. 195). Ordinarily, matters in bar must be taken advantage of by proper plea, but when apparent on the face of the pleadings, as in this case, they may, even at the trial term, be urged by motion in the nature of a general demurrer. Code, § 81-302; Killen v. Compton, 57 Ga. 63. Waiver by election results where a choice is exercised between inconsistent remedies; and in such a case any decisive act of affirmance or disaffirmance, done with knowledge of the facts, determines the right of the party once and for all. Chapple v. Hight,161 Ga. 629, 631 (131 S.E. 505). If it can now be said by this court that the plaintiff in his first suit elected a remedy inconsistent with the one now employed, then he is bound by that election. There is no inconsistency between different legal remedial rights, all of which are based upon a claim of title to property in the plaintiff, or all of which are based upon the affirmance of title in the defendant. Board of Education ofGlynn County v. Day, 128 Ga. 156, 164 (57 S.E. 359). It has been said that the so-called "inconsistency of remedies" is in reality not an inconsistency between the remedies themselves, but must be taken to mean that a certain state of facts, relied on as the basis of a certain remedy, is inconsistent with and repugnant to another state of facts relied on as the basis of another remedy. If a party, therefore, invokes a remedy appropriate
to a certain state of facts, and another remedy exists appropriate to a different state of facts, his invocation of the first remedy is an election. Two remedies are inconsistent, if the assertion of one involves the negation or repudiation of the other. 18 Am. Jur. 135, § 12. Here, both suits by the plaintiff were in ejectment for the recovery of the same land with mesne profits, and each was predicated on the proposition that he had acquired, by full payment of the purchase-money, a perfect equitable title. In the first suit, he based his right to recover on the theory that the full purchase-price for the land had been paid prior to the date of execution and delivery to him of a certain bond for title; and in the second suit, on the theory that the purchase-price was paid subsequently to the execution and delivery of the same bond for title. Counsel for the defendant in error concedes in his brief that there has been no election between inconsistent remedies, but contends that the two suits were brought on inconsistent theories. If either theory be true, the plaintiff has a perfect equitable title which will support an action in ejectment. It has been quaintly said that "truth is the goodness and virtue of pleading, as certainty is the grace and beauty of it." There is also an ancient rule, sometimes designated as "the rule of honesty in pleading," to the effect that every pleading should state only such facts as are true and capable of proof, avoiding all allegations tending to deceive the court or the adversary, or to delay the progress of the trial. Any pleading that contains material allegations tending to deceive the court or the adversary, or to delay the progress of the trial. Any pleading that contains material allegations of fact which are self-contradictory necessarily violates two general rules of pleading — first, in that one or the other of such allegations must be untrue; and, second, in that the two together leave it uncertain as to which of them, if either, is in fact true. The experience of ages in the administration of justice demonstrates that, in contested cases, the evidence seldom fails to show material conflicts, and ofttimes shows materially different versions of the facts in such a way that each version might constitute a good cause of action. In such a case, the careful pleader has no choice but to allege all of such contradictory versions of the same transaction, or else hazard his whole case on the one version which he thinks the evidence will most likely support, thereby facing the usual dangers of variance and nonsuit, as well as affording his adversary a possible opportunity to point out a fatal variance between the
allegations and the proof. It was this experience in the administration of justice that brought about the common-law rule permitting plaintiffs to set out several counts in one declaration, all counts being based on the same subject-matter of complaint, and each count being in some material particular contradictory of all the others. 1 Chitty 409 et seq. While the English rule as to pleading several counts has undergone great changes since May 14, 1776, the General Assembly of Georgia has not seen fit to abolish it in this State; and, under the reviving act of February 25, 1784 (Cobb's Digest 721), a plaintiff in this State may now, as at common law prior to May 14, 1776, embrace in one petition as many contradictory counts based upon the same subject-matter of complaint as he deems advisable, subject only to the general rules as to joinder of actions and to such statutory changes in matters of form as have been enacted by the General Assembly. Unquestionably, the plaintiff could have brought his first suit in two counts, alleging in separate counts each of the contradictory versions here complained of, and his petition would have been good. He elected however, to bring his petition in one count, on one version, and suffered a nonsuit. We are unable to find any law which precludes him from bringing the same action anew upon a different version, although contradictory to the first. What he may do directly may be done indirectly. Although the details of the averments in the original and renewed suits were different, in each the remedy sought was the one remedy of ejectment. Since there was no election of inconsistent remedies, the court erred in dismissing the suit.
Judgment reversed. All the Justices concur, except Duckworthand Head, JJ., who dissent from the ruling in the first divisionof the opinion.