Johnson v. McComb

McCay, Judge. 1. We think Jackson was a competent witness. It is only %y the most violent use of language that he can be said to be •a party to the cause of action on trial. The issue is between •the plaintiff in fi. fa. and the claimant, and the thing to be tried is, whether the property levied on is subject to the lien •of the judgment. Jackson is certainly no party to this issue; nor is he a party to the record. The matter on which he is called .to testify arises collaterally. He is, in effect, called on to show [123] that Mitchell’s deed was made in pursuance of a contrac made several years before, and fully executed on Jackson’s side. The estate of Mitchell has no interest, nor is it a party. True, the execution is against Mitchell, but as was not necessary, his representative is not made a party to the present proceeding. Besides, under the facts, as stated, Mitchell’s estate is not interested in any way in the event of the suit. If the land is subjected, the warranty to McComb is broken, but the land will be sold to pay Mitchell’s debt, so that its interest is balanced. Moreover, Jackson would be a good witness before the Evidence Act. He has no interest, apparently, in the event of the suit. True, he sold the land and got the consideration, but it appears that McComb, with a full knowledge of the facts, took and relied upon Mitchell’s warranty, and we do not see how he has any right, even if he loses the land, to repudiate this written warranty and fall back on Jackson, against whom he has no warranty at all. The only ground he could rely on would be fraud of Jackson, and that is repudiated by the evidence of Jackson, and, for the purpose of determining his competency, as the case stands, that is to be taken for true. In any view of it, therefore, we think Jackson competent as a witness. So, too, we think his evidence is not illegal. He is called to show that the deed made by Mitchell was made in pursuance of a parol contract made with him (Jackson) several years before. This is a very common occurrence. Deeds are daily made in this way. Bonds for titles are taken — perhaps transferred — the money is finally paid, the deed made and the bond destroyed. To exclude such testimony is to deny the right to show what consideration moved the grantor to make the deed. This is always admissible, even to contradict the deed: 20 Georgia, 723 ; 24 Ibid., 333; Code, 2690. 2. Nor is this the setting up, by parol, of an express trust. Here was no express trust. There is no pretence that Mitchell agreed to hold as trustee for Jackson. It is the ordinary case of proving the facts by parol, from which the law implies a trust. Jackson'proves that he bought this laud from Mitchell [124] and paid him for it. Nothing was said about the deed — at least, the proof shows nothing. From these facts, the law implies a trust: See Revised Code, sec. 2290, 2291. Again, this trust, so far as Mitchell is concerned, was executed by the deed to MeComb, since he made the deed in accordance with his implied obligation, getting nothing from MeComb. 3. The evidence against the verdict is very strong. If Jackson’s testimony is true, the land is not subject. Had the plaintiff’s debt been contracted after this asserted sale, a different question would arise. But if what Jackson says is so, the secrecy, etc., of this sale did not in any way hurt the plaintiff. tie gave no credit to Mitchell, misled by his ignorance of this sale. Upon the facts of the sale, there is no other witness but Jackson. True, the circumstances related fail to show that this trade of the negroes for the land was known to any body but themselves and their families; and that, though Jackson went into possession, Mitchell also remained in possession. But from the relation of the parties, however this might tend to mislead a person dealing with Mitchell after-wards, these facts are not at all inconsistent with the purchase. True, they are facts which the jury had a right to weigh, and, therefore, it cannot be said that there is absolutely no evidence in favor of the verdict. Still, as facts authorizing Jackson to be discredited, they are of but little weight, and the Judge having granted a new trial, evidently upon the ground that the verdict was against the evidence, -or that it was founded, perhaps, on some mistaken view of the effect, in law, of the want of a writing, or upon the fact of Mitchell’s remaining in possession, we will not interfere with his judgment. Judgment affirmed.