Renitz v. Williamson

George, J. (After stating the foregoing facts.) 1. The assignments of error in both the main and the cross-bill of exceptions will be considered together. We are of the opinion that the petition set forth a cause of action, and that the court did not err in overruling the general demurrer. In so far as the grounds of special demurrer were meritorious, they were met by amendment. Polhill v. Brown, 84 Ga. 338 (10 S. E. 921); Wells v. Kemme, 145 Ga. 17 (88 S. E. 562); McNair v. Brown, 147 Ga. 161 (93 S. E. 289). 2. The court permitted Miles A. Stevens and four daughters of Mrs. Julia E. Stevens to testify to transactions and conversations between Mrs. Stevens and the defendant Williamson. The defendant objected to this testimony, upon the ground that the witnesses were incompetent to testify to any transaction or communication [245] had by Mrs. Stevens in her lifetime with the parties testifying or with any other person, Mrs. Stevens’ transferee • being the party defendant, and the witnesses themselves, though not parties to the action, being directly interested in the result of the suit as heirs at law of Mrs. Stevens, who died without leaving debts. Subsection 1 of section 5858 of the Civil Code provides: “Where any suit is instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person, as to transactions or communications with such insane or deceased person, whether such transactions or communications were had by such insane or deceased person with the party testifying, or with any other person.” Subsection 4 of the same section provides: “Where a person not a party, but a person interested in the result of the suit, is offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any cause be incompetent.” The plaintiff in the cross-bill of exceptions does not insist that the witnesses were incompetent and the evidence inadmissible because the suit was instituted by the personal representative cf Mrs. Stevens. His exact contention is that the suit stands as if brought by the husband and children of Mrs. Stevens, the heirs at law, against the transferee of their intestate. We do not think this evidence was inadmissible. The reason, spirit, and intention of the statute is, as has been many times observed, that when one of the parties to the contract is dead and can not give his version of the contract or transaction, the other party thereto should not be admitted to testify in his own favor against the interest of the deceased party. This evidence is not within the strict letter of the statute, nor is it within the reason and spirit of the statute. The transferee is in life, and may answer the evidence of the heirs at law of the transferor. The witnesses merely testified to statements made by Mr. Williamson to Mrs. Stevens. The witnesses were offered by the personal representative of Mrs. Stevens; they did not testify against the deceased transferor, or against the interest of the deceased transferor. Subsection 6 of section 5858 of the Civil Code is as follows: “In all cases where the personal representative of the deceased or insane party has introduced a witness interested in the event of a suit, who has testified as to transactions [246] or communications on the part of the surviving agent or party with a deceased or insane party or agent, the surviving party or his agent may be examined in reference to such facts testified to by said witness.” The provisions of this subsection tend to sustain the view that the evidence objected to was admissible. Nothing in Hendrick v. Daniel, 119 Ga. 358 (46 S. E. 438), Hendricks v. Allen, 128 Ga. 181(2), 186 (57 S. E. 224), Turner v. Woodward, 136 Ga. 275 (71 S. E. 418), or Hudson v. Broughton, 147 Ga. 547 (94 S. E. 1007), is in conflict with the ruling here made. 3. At the conclusion of the evidence the defendant moved to rule out certain evidence tending to show that the transfer of the bond for title by Mrs. Stevens to Williamson was not, as by its terms it purported to be, an absolute and unconditional transfer. The court overruled this motion. The defendant assigns error upon this ruling, and contends that the transfer, being absolute on its- face, could not be shown by parol evidence to he a conditional transfer made for the purpose of securing a loan, the defendant being in possession of the land for some years prior to the bringing of the suit. A deed absolute in form may be shown to have been made to secure a debt, where the maker remains in possession of the land conveyed. Civil Code, § 3258; Mercer v. Morgan, 136 Ga. 632 (71 S. E. 1075). If the jury should accept the plaintiffs evidence as the truth of the case, Mrs. Stevens remained'in possession of the property until her death, and thereafter her heirs at law continued in possession and never surrendered the possession to the defendant. The possession of the defendant, wrongfully acquired, will not prevent the administrator of Mrs. Stevens, rightfully entitled to the possession, from showing by parol that the transfer of the bond for title was made merely to secure a loan of money. See Lowe v. Findley, 141 Ga. 380 (81 S. E. 230). 4. Did the court err in directing a verdict for the defendant? This brings us to a brief consideration of the evidence. On the direct examination the testimony of Miles A. Stevens, the plaintiff, tended to sustain the material allegations of the petition. On cross-examination, it is true, he testified, “If I never paid Williamson back, the land was to be his; and if I did pay him back, the place was to belong to Mrs. Stevens.” In other respects the testimony of the plaintiff on cross-examination was vague and indefinite, and tended to show a mere optional agreement on the part of [247] Mrs. Stevens to redeem the land. His testimony alone, considered as a whole, would make at best a doubtful case for recovery. However, the testimony of the four daughters of Mrs. Stevens was positive and direct to the effect that Mr. Williamson agreed to advance the money and stand in the place of the original vendor, Bazemore. The defendant himself testified: “I was to take up these papers [referring to the notes given by Mrs. Stevens to Bazemore] and pay for the land, and Mr. Stevens was to pay me; and if he did not, the land was to be mine. . . Mr. Stevens was to repay me by redeeming that contract as specified in this note [referring again to the notes given by Mrs. Stevens to Bazemore]; he never paid a penny on these notes.” Mrs. Williamson, the wife of the defendant, was sworn in his behalf, and she testified: “Mr. Stevens was to pay Mr. Williamson back what he paid out. They were to buy the place from Mr. Williamson instead of Mr. Bazemore. I knew Mr. Williamson was paying the $1600, because Mr. Bazemore was willing to knock off $400. My husband held the bond for title because he paid the $1600, and he was to hold it until they paid him back, and then he was to give them the land. . . Mr! Williamson bought the place and he was to hold it until they redeemed it, and of course he expected interest on the money. . . My understanding was that Mr. Stevens was to pay Mr. Williamson the same for the place he was to pay Bazemore.” Aside from the oral testimony, the defendant, after the transfer of the bond for title by Mrs. Stevens to him, paid $1600 to Bazemore and accepted Bazemore’s deed to the land. At the time of the payment of the money by the defendant and the execution of the deed by Bazemore to the defendant, Bazemore transferred the purchase-money notes given by Mrs. Stevens to him; and the defendant testified, “I bought the contract Stevens made with Bazemore. I did not tender the notes or bond when I told Stevens to pay for the land” (referring to a demand which he made upon Stevens). Whether the defendant held the notes of Mrs. Stevens at the time of the trial does not clearly appear. The notes were transferred to the defendant, and were introduced in evidence by the plaintiff. Whether the evidence for the plaintiff is too vague and uncertain to show a definite and specific agreement on the part of the defendant to accept the money actually advanced by him, without interest, and upon- dates other than those specified in the notes^given [248] by Mrs. Stevens to Bazemore, or whether this agreement, if made, was a mere nudnm pactum, is not necessarily for decision in the present case. At least, in the respect just above indicated, the plaintiff’s evidence made an issue for the jury. “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular, verdict, the court may direct the jury to find for the party entitled thereto.” Civil Code, § 5926. As‘indicated above, the evidence would have authorized a verdict for the .plaintiff. From the statement of facts it will be seen that the prayers of the petition are ample. From the foregoing it follows that the judgment on the main bill of exceptions will be reversed and the judgment on the cross-bill of exceptions affirmed. All the Justices concur.