Thompson v. Cody

Atkinson, Justice. The facts are stated in the official report. 1. To determine the several questions submitted in this case, we will first consider whether the claimant was a competent witness, upon the trial of this case, to testify as to transactions and dealings between himself and the defendant in execution. Under the provisions of our Civil Gode, §5269, all persons are competent and compellable to give evidence on behalf of either or both of the parties to a suit, unless such person fall within some of the exceptions stated in that section of the code. In a claim case the only two substantial parties to the issue joined are the claimant and the plaintiff in execution. The defendant is in no sense a party to the issue pending between these two. Iiis death, therefore, at the time of the trial, disqualifies neither the plaintiff in execution nor the claimant, for though being dead, he is not “the opposite party” within the meaning of that term as it is employed in the section of the code to which reference is hereinabove made. When the claimant was offered as a witness on his own behalf in the present case, even though the defendant in execution was dead, he did not fall within any of the exceptions stated in the section of the code referred to, which would disqualify him arad (readier ¡him incompetent as a witness against the plaintiff in execution upon the trial of the claim case. 2. Complaint is made of the ruling of the judge in admitting, over the objection of the claimant, certain declarations upon the part of the defendant in execution, the claimant not being present at the time such declarations were made. The real question at issue in this case was upon the validity of a deed. The claimant alleged that it was executed to him by the defendant in execution in good faith, and upon a proper and valuable consideration. The [777] plaintiff in execution contended that the conveyance was ■executed in pursuance of a fraudulent purpose upon the part of the defendant in execution to avoid the payment of .his debt. The plaintiff offered to prove that the defendant in execution, after the execution of the deed, but before It was recorded, had made to him in the presence of others "the general statement, that he, the defendant in execution, had plenty of lands to pay his debts, and all his lands were subject to the payment of his debts. We think that this testimony was altogether irrelevant'. In the first place, so far 'as he Was ■oonoeasned, ike hlaid parted with has title prior to making the declarations referred to, and it was Wholly incompetent for him, as against his grantee, to undertake to talk away the latter’s estate. Aside from this consideration, we are fully persuaded that the declarations, if admitted, were wholly irrelevant. It may or may not have been true that the defendant in execution had lands. It may or may not have been true that these lands were subject to the payment of his debts. Whether or not they were tone Would be a matter of inid'ifferenoe 'bo this inquiry; for the only question in this case was whether the particular land sought to be subjected was the property of the claimant, and, therefore, declarations by the defendant in execution, in general toms, even if otherwise admissible, to ■the effect that all his lands were subject to the payment of his debts, would be wholly irrelevant, unless they were ■offered as against him in litigation to which he was himself a party. We think, therefore, the court erred in admitting in evidence the declarations to which objection was made. 3. The consideration of the deed under which the claimant derived his title from the grantor was expressed to be for love and affection. Upon the trial of the case he ■offered to prove that, in addition to the good consideration ■expressed in the deed, there was likewise a valuable consideration moving the grantor to its execution. This testi [778] mony was repelled by tbe court; and we are of tbe opinion that therein the court committed error. As a general rule parol evidence lie inadmissible to add to, take from or vary the terms of a written contract. Our code provides that-the consideration of a deed, as between the parties, may always be inquired into when the principles of justice; would seem to require it. The parol evidence offered in. this case did not tend either to add to, take from or vary the terms of the deed. This testimony was entirely consistent with the deed. Its object was to support the deed, not to destroy it. As was well said by the Supreme Court of' South Carolina in the case of Banks v. Brown, 2d Hill’s Chancery Reports, reported in 30 American Decisions, p. 382, “The general rule is, that parol evidence is inadmissible to add to or vary the terms of a deed, or to show any circumstances inconsistent with it; and if the converse - of the rule be true, it follows, that anything may be admitted which is consistent with it. On this principle, parol evidence has been admitted to supply a consideration, where none has been expressed in the deed, and to show a. particular consideration where that expressed was general, as for 'divers good causes and considerations’: 1 Ph. 481, 482, 483. And I cannot perceive why, if there are two considerations existing at the time of the execution of the deed, only one of which is expressed, parol should not be admitted to show the other and better. So far from tending to contradict >tke deed, its object fe to support it, and must necessarily be consistent with it — the addition of a. circumstance necessary to give it effect. And it strikes me, that this is the more reasonable where it is a third party, a. stranger, who seeks to avoid the deed on account of the-want of consideration.” This question was practically ruled in the case of Dawson v. Briscoe, 97 Ga. 408, where-it was held, “A deed to realty of considerable value, though’ on its face purp'orting to be executed upon a -nominal money consideration only, may be supported by evidence showing [779] that the grantee was the grantor’s daughter, and that thereat consideration was love and affection.” If in that case-it were competent to show a good consideration as supporting a consideration expressed to have been for value, it is-certainly competent, in support of a consideration expressed to have been for love and affection, to show that, there was another independent and valuable consideration moving the grantor to the execution of the deed. We conclude, therefore, that the court erred in repelling the testimony offered. 4. As we have said before, the question in this case-turns upon the validity of the conveyance under which the-claimant asserts his right. The validity of that conveyance depends upon whether it was fraudulent. Upon the question of fraud or no fraud in the execution of the conveyance there was a conflict of evidence, and there are circumstances from which inferences may be drawn favorable to both the plaintiff in execution and the claimant. Under this state of the testimony, we think the court erred in directing a verdict subjecting the property to the debt of' the plaintiff in execution. Judgmmt ■reversed. All the Justioes Gomwrrmg.