Pearson v. Forsyth

Bleckley, Justice. A judgment for a large debt was rendered in 1874. The fi. fa. issued thereon was levied, in 1876, upon certain premises, the same being a family residence in the city of Rome. A claim was interposed by a sister-in-law of the defendant in fi,. fa. The evidence of paper title in the defendant was a deed in fee simple, made to him in 1856 by a person then in possession. The consideration expressed was three thous- and dollars. It appeared that the claimant (not the defendant), went into possession immediately after the purchase, and that she remained in possession until December, 1863. It further appeared that the defendant took possession in 1866, and retained it until March, 1870, and that the claim [542] ant then resumed possession, and has kept it ever since. It further appeared that on the first of January, 1871, thé claimant gave her negotiable promissory note to the defendant for three thousand dollars, due at twelve months, with interest from date, the note expressing on its face that it was “ for town property — real estate in Rome.” This note was produced at the trial, having been found among the defendant’s papers after his decease, which took place in July, 1877. The evidence of paper title in the claimant was a deed from the defendant, conveying the premises to her in fee simple. This deed bore date October 14,1873. The consideration expressed was $3,000.00. It was admitted that the suit in which the judgment was rendered was pending when this conveyance was made, and had been pending for some years. There was evidence that the defendant became insolvent in September, 1873. The claimant sought to establish title in herself thus: First, she alleged that her money was used by the defendant to pay for the premises when he purchased in 1856; that he purchased for her and at her request, but took the conveyance to himself without her knowledge or consent, and that, therefore, a trust resulted to her by operation of law. Secondly, she alleged that in 1863 she verbally bargained the premises to the defendant; that he paid nothing on the contract, though he afterwards entered into possession; that he enjoyed the rents and profits until she re-entered in March, 1870; that, at the time she gave the note above referred to, he gave her a bond for titles; that the note was not in fact given for purchase money, but for money which he said he had expended for taxes and improvements ; that she claimed then, and continued to claim, that if she had to pay him for taxes and improvements, he ought to account to her for the rents, which were worth fifty dollars per month ; that when he conveyed to her, in October, 1873, the adjustment was based on a recognition of her demand, he agreeing to treat the note as paid by the rents, and promising to surrender it, or that it should never come against her: that she then surrendered to him the bond [543] for titles, and that the note, though discharged in the manner stated, had never been delivered up. There was evidence tending to verify these several facts, but, as to most of them, only the testimony of the claimant hferself. She was a witness in her own behalf. The-plaintiff in fi. fa. stood upon the paper title as proved in the defendant up to and after his insolvency, together with his possession from 1866 to 1870, and sought to avoid the conveyance from him to the claimant as voluntary, or, if not voluntary, as made to defraud creditors. On the day preceding the execution of that conveyance, the defendant gave instructions by which to prepare the deed. The person to whom they were given made a memorandum, in his presence, of his instructions and statements. That person wrote the deed, and attested it as one of the witnesses. He, also, at the request of the defmdcmt, acted as agent for the claimant in receiving delivery of the deed, she not being present. The memorandum was in these words: “ Oct. 13,1873. No. 12 and 13, in Oostanaula Div. of Rome, were conveyed to Mrs. Mary Pearson. Before the war, "W. S. sold her this property for 3 m dollars, re-purchased it during the war and paid her for it in 7.30 notes. After the war, sold it back to her for 3 m again. He holds her note for it, makes her a deed because she has never been satisfied with the sale for Confederate money.” 1, 2. At the trial, the foregoing memorandum was admitted in evidence (together with the testimony of the maker of it), the claimant objecting upon the ground that the memorandum “ was but the sayings or declarations of the defendant in fi. fa., made in the absence of the claimant, and when the defendant was not in possession of the property.” There may be some other ground on which, if it had been presented, the memorandum should have been excluded. The ground taken conceded that the memorandum embodied the declarations of the defendant. These declarations were a part of the res gestee of making the deed to the claimant, and they serve to illustrate the motive and purpose [544] of the maker. They bear, in some degree, upon the question of fraud, in so far as that question has concern with the mind of one of the parties. The deed purports to have been made for and in consideration of the sum of three thousand dollars, the receipt whereof is acknowledged on the face of the deed ; the memorandum throws light on the meaning of this acknowledgement. The objection to the evidence was properly overruled. 3. It is complained that the court erred in charging the jury, and in not charging certain requests of the claimant, without addition of qualification. The substance of the charge was correct, and nothing was added to the requests which a possible view of the facts in evidence did not render appropriate. It is further complained that the verdict was contrary to evidence and to law. No law was violated by it. The evidence was enough; for the claimant was her own witness, and the nature of the case was such as to leave a wide scope for the jury to reason and infer. It may be that we should have found differently, had we been of the panel. Judgment affirmed.