Leverett v. Nunn

Gilbert, J. 1. Error is assigned on the admission of the following evidence, over objection of movant: “In 1910 and 1911 H. B. Leverett, W. B. Butts, and W. L. Benson for a while composed the firm of H. B. Leverett & Co., from 1908 to 1911. Mr. H. B. Leverett, the defendant in this case, was a member of that firm. W. B. Butts, the other defendant in this ease, was also a member of that firm.” The grounds of objection were, that the evidence was immaterial and irrelevant as to who composed the firm of H. B. Leverett & Co., and that there were no. pleadings upon which to base the admission of such evidence. Held, that the evidence was admissible for the consideration of the jury, in connection with other evidence, as one of the circumstances tending to illustrate the question of delivery to the plaintiff. 2. In the second, third, fourth, fifth, and sixth grounds of the amendment to the motion for a new trial, error is assigned on the admission of evidence, over the objection of movant, to the effect and in substance that H. B. Leverett, the defendant, had said to the several witnesses that he had given his land to his children, or that he had given all of his property to his children and then had no property. The objection to the evidence in each instance was on the ground that the same was immaterial and irrelevant, and that the description was too vague and indefinite to show what lands were referred to. Held: The general rule is that the admissions of a party to the record are always admissible when offered by the other party; and under the application of this rule the evidence complained of in the grounds above mentioned is admissible. Civil Code (1910), § 5776; Lucas v. Parsons, 27 Ga. 593, 630. Beck, P. J., and Gilbert, J., dissent from the above ruling, on the ground that the evidence should be considered as hearsay, and does not fall within any of the exceptions to the hearsay rule. 3. One ground of the motion complains that the trial judge erred in that he “ did intimate or express an opinion in the presence of the jury as [878] to what had been proven in said case.” The plaintiff offered in evidence a deed from H. B. Leverett to Mrs. Annie Mae Butts, stating that the same was offered for the purpose of showing that it was not changed or altered by W. B. Butts. On objection to the introduction of this evidence the court remarked in the presence of the jury, “ I think the testimony already before the jury that both deeds were delivered at the same time, that is to say they were sent by Mr. Butts by mail to the clerk’s office for the purpose of record, and were recorded and went back to him by mail, is admissible; but to put in this record to show that one was changed and one was not, I can’t see how it illustrates anything in this case.” Seld, that the question as to whether or not this deed had been changed was not an issue in the ease, and the evidence was not material; therefore this ground of the motion shows no cause for a reversal. 4. In the eighth ground of the amendment to the motion for a new trial complaint is made that the court erred in charging the jury as follows: “Now, gentlemen, that is a question for you to determine, as before stated, whether he [H. B. Leverett] intended it [the deed] should be delivered, and whether it was in fact delivered.” The criticism is that the charge was, in effect, that if the grantor intended said deed to be delivered, though as a matter of fact it had never been delivered, his intention to deliver was in fact a delivery. Seld, that the charge is not subject to the criticism, and, considered in connection with the entire charge, was not calculated to mislead the jury. 5. In the ninth ground of the amendment to the motion for new trial complaint is'made that the court charged the jury as follows: “Now, it is not necessary, gentlemen, that the grantee in a deed shall be present. If Mr. Leverett parted with his control and dominion and possession over the deed to any one to hold it for the grantee, -the plaintiff in this case, that would be a sufficient delivery of the deed.” The criticism . is that “there is no evidence showing that the deed was ever delivered by Mr. Leverett to any one for the plaintiff, or that it ever left his control, custody, and dominion with his consent. Under the pleadings and the evidence the above charge was not error. 6. The tenth ground of the amendment to the motion for a new trial complains .that the court charged the jury as follows: “ If it was not his [H. B. Leverett’s] intention to deliver it [the deed], the mere-record of it without authority and consent would not be a delivery in the eyes of the law.” Seld, that this excerpt, taken in connection with the entire charge and the .evidence in the ease, does not show cause for the grant of a new trial. It stated a correct abstract principle of law; and if the defendant had desired an amplification or restriction of the same, a timely written request should have been offered. 7. In the eleventh ground movant complains that the court charged the jury as follows: “Now, gentlemen, if before any delivery, under the rules I have given you, Mr. Leverett, while still holding possession of the deed in question, and before he intended delivering it, and before it passed out of his control, before delivery, under the rules I have given you in charge, if he then decided to change the deed and give this land described in the deed both to the plaintiff in this case and her daughter, [879] Ruth Butts, and he made that alteration in the deed, inserting the name of Ruth Butts, either by.himself or authorized some one else to do it for him,- and with the consent of the grantee in the deed, the plaintiff in this case, why then, gentlemen, if this is the truth about the business, and he consented to the record of the deed and put them in possession under the deed after the alteration, and there was a delivery after that alteration, then this deed would put the title to that land in both the plaintiff in this case and Miss Ruth Butts.” The criticism is that the court used the words “ with the consent of the grantee ” in the deed, it being contended that there was no evidence that the grantee consented, and no contention that her consent was had or was necessary. Held, that the charge is subject to the criticism, and on another trial the language of this excerpt will be modified accordingly. No. 3297. January 27, 1923. Rehearing denied February 20, 1923. 8. In the twelfth ground the movant complains that the court erred in charging the jury as follows: “ Gentlemen, the court instructs you that there was a delivery of the deed.” The criticism is that this charge “ removed from the consideration of the jury one of the contested facts, and was in fact the direction of a verdict in favor of the plaintiff.” Held, that the above charge was not subject to the criticism made; nor was it erroneous when taken in connection with the words immediately following, to wit: “ The only question for you to determine is whether or not the delivery was made before or after the alteration. . . If it was made after the change, then.the delivery was to the petitioner and Miss Ruth Butts.” 9. In the thirteenth ground error is assigned because the court submitted the following question to be answered by the jury, to wit: “Did petitioner, Mrs. Nunn, consent to. the alleged alteration in deed of Mr. Leverett before delivery? Answer ‘Yes’ or ‘No.’ It is insisted that it was not necessary that the petitioner, Mrs. Nunn, consent to the change - in the deed before it was delivered to her by the grantor; for if the deed had never been delivered it did not pass any title out of the grantor to the grantee; that the issue was whether there had been a delivery. Held, that under the pleadings and the evidence the submission of this question was erroneous. Judgment reversed. All the Justices concur, except Beclc, P. J., and Gilbert, J., who dissent from the ruling in the second headnote. M. Z. O'Neal and Hatchett- & Hatchett, for plaintiffs in error. Terrell & Foley, contra.