Kelly v. William Sharp Saddlery Co.

Atkinson, Justice. 1. This was a claim case, and the issue involved was whether the property levied upon was the property of the wife or the property of the husband. She was the claimant. The husband was in possession. "Upon the trial of the case, she proposed to testify that she bought the property levied upon and paid for it with property received from her father’s estate. If what she proposed to testify were true, the property was hers, and could not be subject [396] to the payment of her husband’s debt, and it is impossible for us to conceive upon what theory the testimony offered was rejected as irrelevant. It appears that subsequent to the time her husband entered into possession, but before the rendition of the judgment upon which the execution issued, the husband conveyed the property to her. Upon the bona fides of this transaction, this testimony had a direct bearing, and should have been admitted in support of her claim of title, whether in her claim affidavit she relied upon this as the source of her right or not. Her claim affidavit alleged that the property was hers, and not that of her husband. The evidence went directly to the support of her contention, and should have been admitted. 2. The affidavit which is authorized to be filed under section 2112 of the code, in order to form an issue upon the genuineness of a registered deed, must be made either by the alleged maker of the deed, one of his heirs, or the opposite party in the case. Upon the trial of the present case the claimant offered in evidence a deed purporting to have been made by John Kelly, defendant in fi. fa., to herself, dated October 6, 1891, reciting a consideration of $360, and purporting to convey, amongst other lots, the property in dispute; whereupon the attorney at law of the plaintiff filed an affidavit of forgery. It appears that the attorney of the plaintiff in the case on trial was the plaintiff in another case against the same defendant and the same claimant, which, by agreement of counsel, was made dependent upon the result of the issue in the case on trial. The claimant objected to the filing of the affidavit, and moved to strike it upon the ground, that the person who made the affidavit was neither the maker of the deed, nor the heir at law, nor the opposite party in the case on trial. This motion the court overruled. The words of the statute are plain, and do not require either interpretation or construction. They need only to be applied to the subject. The maker of this affidavit did not fall within either of the [397] classes of persons authorized to make it, and therefore the court should have disallowed it. The mere fact that he was plaintiff in another case involving substantially the same issues and depending for its determination upon the result in this case, did not malee him the opposite party to the case on trial so as to bring him within the terms of the statute. The object of the law in requiring the affidavit to be filed by one of the particular persons named is to commit the conscience of some person directly interested in the result of the trial against the genuineness of the deed. . It being registered, the presumptions are all in favor of its due execution; and it would be manifestly improper to allow its genuineness to be called in question by a collateral proceeding authorized under the section of the code above cited, upon the affidavit of a person who was a stranger to the title, and likewise a stranger in interest. 3. Even if it were competent for the attorney of the plaintiff to file this affidavit, it was insufficient in the present ease, for the reason that the affidavit, itself does not state that the affiant purported to make the same in his capacity as attorney at law representing the adverse party. In no event, therefore, ought the court to have allowed the affidavit to have been filed. 4. The court erred in excluding the testimony of the maker of the deed, when he was offered to testify to the fact of its execution. Even prior to the passage of the act approved December 16, 1895 (Acts 1895, p. 30), the fate of the deed was not made dependent upon the memory of the subscribing witnesses; for while under section 3837 of the code the subscribing witnesses were required to be produced, if accessible, section 3838 of the code provides that, “if the witness is not produced, or, being produced, cannot recollect the transaction, the court may hear any other evidence to prove its execution.” In the present case, the subscribing witnesses were produced. One of them had no recollection of the transaction; the other could [398] swear to tbe fact of execution only inferentially. Under that state of facts, tbe maker of tbe deed, being a competent witness, was entitled to be beard upon tbe question of its execution. For a full discussion of tbe question now under consideration, see tbe case of 'Gillis v. >GMis, 96 'Ga. 1. Tbe court erred in excluding tbe 'testimony offered through tbe maker of tbe deed, and a new trial should have been granted. Judgment reversed.