Waters v. Wells

Hill, J. (After stating the foregoing facts.) Error is assigned in the first special ground of the motion for new trial because of the alleged failure of the court to charge the jury certain contentions of the plaintiff. There was no request in writing to charge the contentions set up in this ground. The first contention which it is insisted the court should have charged the jury was that the plaintiff was a bona fide purchaser of the land in controversy for a valuable consideration. It will be seen from the foregoing statement of facts that the consideration expressed in the plaintiff’s deed, upon which he relied for a rer covery, was natural love and affection and the sum of $5. The evidence discloses the fact that he never paid the $5, and, while testifying in his own behalf, he stated that he did not pay anything for the land in controversy and did not know of the existence of the deed to him for a'long number of years after it was made, he being a boy of thirteen years at the time of its execution. The second contention which it is insisted was omitted from the charge was that a part of the consideration moving from the plaintiff’s father inducing him to make the deed was several months services given by the plaintiff to his father after he had become twenty-one years of age. According to the evidence .as disclosed by the record, these services, if performed, were eight or nine years after the deed was executed; and therefore the court properly failed to state this contention of the plaintiff, if such was the contention at the time of the trial, as the services rendered long after the execution of the deed could not be the basis of a valuable consideration unless there was a contract to that effect, and there is no evidence showing that such was the fact; and as to this contention we are of the opinion that even if there had been a request in writing to charge this contention, the court would have been authorized to so charge. It is true that the plaintiff gave evidence that his father received his services up to the time he was twenty-one years of age, and received them six months after he was twenty-one; but for the time that he was under twenty-one the father would be entitled to his services, and, as stated above, there is no evidence of a contract between the father and the son that after he became twenty-one years of age his services should go as a part of the consideration for the making of the deed. — 444 — The third contention of the plaintiff which it is insisted that the court should have stated to the jury was that the plaintiff had gone into the possession of the property and made valuable improvements thereon in good faith and upon the strength of the deed from George W. Waters, his father, to him. As to this ground it is sufficient to say that there is no evidence in the case that the plaintiff ever went into possession of the land in controversy. The land in controversy, it appears from the record, is the “home place” sued for; but there is no evidence that the plaintiff was ever in possession of it, or that he made valuable improvements on that place at all. It is true he was in possession of about 400 acres of land outside of the 102 acres in controversy, but there is evidence to the effect that plaintiff never got possession of the deed to any of the land at all until after his father’s death, and that he never had possession of more than a one-horse farm before his father’s death, and that farm was not a part of the land in controversy. It is also contended that the court erred in failing to charge the jury that plaintiff contended that the defendant was not a purchaser for value or without notice, that she paid nothing, for the property either in money or services, and that she well knew, before taking the deed under which she claims, that the maker of her deed had already given plaintiff a deed covering the property he sought to convey to her. We are of the opinion that this assignment is without merit. By reference to the charge of the court, which is in the record, it will appear that this contention was covered in his instructions to the jury. The second special ground of the motion for new trial assigns error on the ruling of the court which permitted the defendant to testify: “ I claim possession of this land in question under a certain deed, and I have had possession of that deed twelve or fifteen years. During that interval of time the deed has been in my possession. I kept it in my room. No one, except me and my husband, had possession of this deed or control of it. Before my father died, a part of the time my husband had this deed in his safe. I also had in my possession this plat, and they both were in my possession all the time.” Error is assigned on the ground that the defendant was incompetent to testify, because her father, under whom she claimed, was dead, and the plaintiff, her brother, — 445 — was claiming likewise under a deed from the same grantor; and the court by consent of counsel having ruled that neither the plaintiff nor the defendant could testify to any transaction had with their father, deceased, counsel for plaintiff contended that to allow the defendant to testify that she had the deed and plat in her possession was equivalent to permitting her to testify that her father in his lifetime had delivered her the deed and plat, under which she claimed. We are of the opinion that the court did not err in allowing the defendant to testify as above set forth. Under the Civil Code (1910), § 5858, the incompetency of a witness to testify in a case like the present extends only to transactions or communications with the deceased. Nugent v. Watkins, 129 Ga. 382 (58 S. E. 888); Hall v. Hilley, 139 Ga. 13 (76 S. E. 566). This court has held that independent physical facts not involving communications or transactions with deceased persons are not within the rule which would exclude one from testifying where the other party to the transactions or communications is deceased. Bank of S. W. Ga. v. McGarrah, 120 Ga. 944 (6) (48 S. E. 393); Nugent v. Watkins, supra; Holbrooks v. Holbrooks, ante, 363 (116 S. E. 786); Watkins v. Stulb, 23 Ga. App. 183 (8) (98 S. E. 94). The evidence was objected to as a whole; and even if any portion of it was objectionable and the other was not, the exception to the admissibility of the evidence as a whole is without merit. Blackstock v. Blackman, 152 Ga. 179 (4) (108 S. E. 775); Moore v. Butler, 150 Ga. 154 (2) (103 S. E. 154). And see, in this connection, DeNieff v. Howell, 138 Ga. 249 (4), 251 (75 S. E. 202); Gallagher v. Keiley, 115 Ga. 420 (2) (41 S. E. 613); Horton v. Smith, 115 Ga. 69 (3) (41 S. E. 253). Error is assigned because the court during the trial erred in permitting the defendant to testify, in answer to a question, as follows: “ Q. On October 28, 1902, the date the deed was made to you by your father, had you ever heard that a deed had .been made to Alonzo Waters to this land, this home place? A. No sir, I did not have any knowledge or suspicion that such a deed had been made to it at that time.” The objection to this evidence is that the defendant is a party to the case, and she is incompetent to testify to a transaction she had with her father, as she- and her brother both claim under deeds from him. Even if the — 446 — above question and answer are objectionable for the reason assigned, it appears from the brief of the evidence in the record that the following questions were asked of the same witness and answers given unobjected to : “ Q. On October 28, 1902, had you ever heard that a deed had been made to A. W. Waters to this land, this home place? A. No sir, I did not have any notice or suspicion that such a deed had been made to it at that time. Q. Did anybody, excluding your father, ever, in the presence of Mr. Holman Waters, before October 28, 1902, say to you that Alonzo Waters held a deed to this land from your father? A. No sir.” Therefore, even if it could be held that it was error to admit the first question and answer objected to, yet the admission of practically the same questions and answers unobjected to will not cause a reversal. The fourth special ground of the motion for new trial complains that the court permitted D. B. C. Nunnally, a witness for the defendant, to testify as follows: “ I and George Waters were very close friends, and we had been since our schoolboy days. We went to school together, and were close friends.” The ground of objection is that whether or not the witness and the deceased were friends had nothing to do with the case, and was irrelevant. While we are of the opinion that the evidence standing alone would be irrelevant, yet we are of the opinion that it is not harmful to the plaintiff, but from a consideration of the brief of the evidence it appears that this witness was the scrivener who drew the deed for the grantor conveying the property in controversy to the defendant, and this witness in other portions of his evidence testified to what the grantor said at the time of the execution of the deed as to the consideration being certain services which the defendant was to render to the grantor, and the above evidence tended to explain the conduct of the grantor in expressing himself freely to his schoolboy friend, and threw light on the question as to. why he went to that friend to draw the deed, and as to what the consideration of the deed was. ■ Error is assigned because the court permitted H. A. Boykin, a witness for the defendant, to testify that “ he knew Mr. George W. Waters in his lifetime, and represented him as attorney in drawing his will, and in communicating with him in drawing his will, and during this conversation George W. Waters told said — 447 — H. A. Boykin he wanted to give his daughter, Laura, the home place, and when he died wanted her to have the home place.” The objection to the admission of this evidence was that the witness was testifying to a communication that0was confidential because of the relationship of attorney and client, and the witness was therefore incompetent to so testify. Under the Civil Code, § 5860, as construed by this court in O'Brien v. Spalding, 102 Ga. 490 (31 S. E. 100, 66 Am. St. R. 202), the above evidence was not inadmissible for the reason assigned. The court refused to permit the plaintiff: to testify that at the time his father was preparing to make a deed to his daughter (the defendant) he tried to get the plaintiff! to sign the deed to the defendant, or to agree that he convey the lands in question to her; plaintiff! contending that at the time the deed was made by George W. Waters to the defendant, he realized that he could not deed the land to her without the consent of the plaintiff, to whom he had formerly made a deed conveying the same property. We are of the opinion that the court did not err in excluding this evidence. This was a transaction and communication between the plaintiff and his deceased father, under whom the defendant claimed as a grantee, and the plaintiff was incompetent to testify to such fact. Civil Code (1910), § 5858, par. 1; Hendrick v. Daniel, 119 Ga. 358 (46 S. E. 438). Error is assigned upon the following charge of the court to the jury: “ On the other hand, if you find from the evidence in this case that the defendant took a deed from her father, without actual notice of the existence of a deed made to her brother, before that time, and she took for a valuable consideration — if you find from the evidence that the father sold her this tract of land in consideration of $1000, either to be paid in money or services (I charge you that the contention of the defendant is that it was paid by services in this case); I charge you that if the father made a trade of that kind, and made a deed conveying this property to his daughter, and she performed the services in good faith without actual notice of the existence of the deed to her brother, why then the plaintiff could not recover, although the father- may have delivered the deed to his son, and the defendant would be entitled to a verdict in her favor.” The above charge is not open to the objection that it ignored the contention of the — 448 — plaintiff that he took for a valuable consideration, and that the court gave the jury to understand that the only thing for them to consider was whether or not defendant was a purchaser for value, and that if she was shfe should recover regardless of whether or not the plaintiff was a purchaser for a valuable consideration. Nor is the charge objectionable for the reason that it intimated to the jury that the court was of the opinion that the deed under which the plaintiff claimed was a voluntary conveyance only. Error is assigned upon the following charge of the court: “ I charge you, however, that if you find from the evidence in this case that the father made the deed, but that he did not intend to deliver, and did not deliver the deed, although he may have had it recorded, if you should find that to be the truth of the ease, that he did not deliver the deed to the son before he made the 'deed to his daughter, why then the daughter would be entitled to recover in this case, and you should find for the defendant.” The above charge is not subject to the criticism that it ignored the contention of the plaintiff that his deed was not a mere voluntary conveyance but was based upon a valuable consideration, nor that it intimated to the jury that the court was of the opinion that the deed under which plaintiff claimed was a mere voluntary conveyance; nor was the charge open to the objection that the court was of the opinion that the defendant’s deed was for a valuable consideration. The Civil Code (1910), § 4110, declares that every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value, without notice of such voluntary conveyance. As pointed out in one of the foregoing divisions of the opinion, the evidence of the plaintiff himself showed that he did not pay the $5 valuable consideration expressed in the deed, when or before it was executed. This court has held that to sustain a voluntary conveyance against a subsequent bona fide purchaser for valuable consideration, notice to the purchaser must be actual. Fleming v. Townsend, 6 Ga. 104 (4); Finch v. Woods, 113 Ga. 997 (39 S. E. 418); Martin v. White, 115 Ga. 866 (42 S. E. 279); Culbreath v. Martin, 129 Ga. 280 (58 S. E. 832); Isler v. Griffin, 134 Ga. 192 (5), 197 (67 S. E. 854); Avera v. Southern Mortgage Co., 147 Ga. 24 (92 S. E. 533); King v. Mobley, 150 Ga. 256 (103 S. E. 237). — 449 — The other exceptions to the excerpts from the charge of the court are practically covered by the foregoing rulings, and they raise practically the same questions as decided above, and they are without merit. The charge of the court, taken as a whole, stated correct principles of law as applicable to the facts of the ease. The verdict of the jury was supported by the evidence; and the trial judge being satisfied therewith, and no error of law appearing as having been committed on the .trial of the case, we reach the conclusion that the court did not err in refusing the motion for a new trial. 11. Headnotes not specifically dealt with in the opinion require no elaboration. Judgment affirmed. All the Justices concur.