Rawson v. Cherry

Lochrane, Chief Justice.

This case arises upon a motion to set aside the order of the Judge dismissing the case. It appears from the record that William A. Rawson had sued Cherry, the defendant in error, upon a note for $2,336 29, dated October, 1861, and signed by J. J. Day and the said Cherry, as security. Upon the ■ trial of this case it became a question before the Court whether Cherry, the party sued, was in possession of the property for which the note was given at the commencement of the action. And upon the trial of such issue the jury was impanneled and the grounds taken in the motion to vacate the order of dismissal transpired, and were alleged as errors.

1. The first question of exception upon the trial of such issue was the rejection of the testimony of William A. Eawson, and declaring him to be an incompetent witness to prove the facts springing out of the transaction, because Lay, one of the makers of the note, was dead. Under the exceptions to section 3798 of the Code of this State, it is contended that Eawson is an incompetent witness. In this we think the Court erred, as neither by the terms of that Act nor under ' the facts in this case in a suit against Cherry would Eawson be held incompetent to give in evidence, the facts growing out of the transaction relative to him. And in 38th Georgia, page 103, this Court held where a contract was made with a surviving co-partner, the party was permitted to give in evidence the facts of the transaction, although in such case one of the partners and parties thereto was dead. But upon this issue as to whether Cherry, the defendant, was in possession of the land sold at the institution of the suit, Eawson was clearly competent, and his testimony entitled to be received by the Court, and we hold the Court erred in re-rejecting it.

2. The evidence in the case shows that the deed was made to Cherry, and that this note was given for the purchase-money; and that Cherry holds the deed now, and is in possession of the land. It also shows that soon after the purchase, Lay went into the army, where he died, and his widow remained upon the place a short time, when she left. And Cherry swears that she was not his tenant, and that he was not in possession of the land on the 13th of August, 1866, the commencement of the suit. The jury found that the defendant was not in possession at the commencement of the action. Upon which finding, as Eawson had not filed his affidavit, under the Act of 1870, the Judge dismissed his case for the non-payment of taxes.

In the view we take of this case, we are satisfied first, that the execution of the deed to these lands, made by Eawson to Cherry in 1861, invested him with the title thereto and the right of possession ; and that all parties, from that date to the date of the trial, whether they paid him rent or not, were in fact his tenants; and upon the trial of this issue, the jury found contrary to the evidence and against the weight of the evidence. And irrespective of Eawson’s testimony, which ought to have been admitted, the facts demonstrate that Cherry was the legal owner of the property, holding title thereto; and the jury ought to have found, upon the facts and the law, that he was in legal possession of the land for which the note was given, at the commencement of the suit. And we, therefore, hold, the Court erred in dismissing the plaintiffs action, upon the ground the taxes hád not been paid, inasmuch as under the law, no taxes were due.

Judgment reversed.