Parker v. Ballard

Lumpkin, J. (After stating the facts.) 1. The administrator of the grantor being the plaintiff in the proceeding to cancel the deed, the purported consideration of which was services rendered to the deceased by the defendant, the latter was an incompetent witness to testify that he and his children had rendered services to the deceased. The rendering of such services by him was a transaction between him and the deceased. Moreover, services rendered by his children were irrelevant except, in so far as they might be treated on the same basis as services., rendered by him, on the ground that he was entitled to such service. Civil Code, § 5269 ; Acts 1900, p. 57. 2 — 4. The other rulings complained of ■ sufficiently appear in the headnotes, except as to the finding of the jury in regard to the value of the services of the defendant. The plaintiff sought to cancel the deed of the defendant, on the ground that the grantor was non compos mentis. On its face it purported to. be made.upon a consideration of services rendered and to be rendered. The plaintiff denied that any such services had been rendered, and claimed that they were altogether fictitious. But. he alleged, that, if it should appear that any such services had in fact been rendered, he was ready and offered to pay the value thereof before having the deed cancelled. As he denied that there were any such services, and only made the offer to do equity in the case if it should be found that there were any, it was not incumbent on him to disprove his own case by in [444] troducing evidence to show that there were such services and what was their value. On the trial the defendant introduced evidence for the purpose of showing that some services were rendered, but did not prove what they were worth. The court submitted the case to the jury upon special questions of fact, one of which inquired, “Were any services rendered S. R. Parker by the defendant, and, if so, what is the value of such services?” In answer to this the jury found the value to be $150. No exception or objection appears to ]iave been taken at the time to the submission of this issue to the jury, nor does the motion for a new trial or the bill of exceptions contain any exception or assignment of error to such submission. The motion for new trial alleges only that the finding of the jury as to the value of such services was contrary to the evidence, and without evidence to support it. Under these circumstances, if the jury, after having found that the grantor did not have mental capacity to make a deed, put a valuation upon the defendant’s services from the best information which was furnished them, we are of the opinion that it would not furnish a ground for new trial at the instance of the defendant. If the plaintiff were complaining of such finding, perhaps the case might be different. But the verdict seems to have been in favor of the defendant' for more than, in strictness, he may have been entitled to. Judgment affirmed. All the Justices concur, except Simmons, O. J., absent.