166 Ga. 523 | Ga. | 1928
(After stating the foregoing facts.)
Does the answer of the defendant set up a cause of action against the plaintiffs? After denying the allegations of the petition, the defendant seeks to set up and enforce an implied trust in her favor, arising from the payment, with her money, of a part of
The court erred in not striking paragraph (o) of the answer.
In answer to the first question propounded, the jury found that the debt due by Jack Berry to Susan Berry under the security deed had been fully paid prior to the sale of the land under the power of sale therein embraced. In the order overruling the motion for new trial, the judge states that he disregarded the answer of the jury to the above question, upon the ground that there was not sufficient evidence to show payment, and entered a decree that the defendant pay back the $200 loaned, with interest to April 8, 1926, and any taxes paid by plaintiffs since the alleged tender, with interest thereon. To the above order the plaintiffs and the administrator of Jack Berry excepted. Counsel for the plaintiffs insists
On motion of the defendant the administrator of Jack Berry was made a party to this cause; and the cross-action of the defendant against the intestate and the plaintiffs was defended by him. In the third ground of the motion for new trial the point is made that in these circumstances the defendant was an incompetent witness to testify to transactions and communications had by her with the intestate; that the defendant being thus incompetent to testify, her testimony is without probative value, and for this reason can not-be considered in passing upon the motion for new trial, notwithstanding its admission in evidence was not objected to by the movants in the trial. If the defendant was incompetent to testify against the personal representative of’ Jack Berry, was her testimony, which was so admitted, without probative-value? In our opinion such testimony, when admitted in evidence without objection by the protected party, is of probative value, and should be considered in passing upon the motion for new trial in this case. It is incumbent upon the party seeking to take advantage of the incompetency of a witness to interpose a timely objection on that ground; and in the absence 'of such objection, the objection is deemed waived, and the witness is properly allowed to testify. 40 Cyc. 2349, par. l/and eases cited in notes 61 and 62. “A fact may be established by incompetent evidence, if it is material, when it is received without objection.” 10 R. C. L. 1008, § 197; Jaggar v. Plunkett, 81 Kan. 565 (106 Pac. 280, 25 L. R. A. (N. S.) 935);
An administrator may waive the incompetency of the survivor to testify in his favor as to transactions and communications had with the intestate. Ainsworth v. Stone, 73 Vt. 101 (50 Atl. 805); Cowles v. Cowles, 81 Vt. 498 (71 Atl. 191). The testimony of a party as to transactions with a deceased person, if not objected to, will be considered, and will be given such weight as his interest and other surrounding circumstances will allow. Chapman v. Peebles, 84 Ala. 283 (4 So. 273). It- is well settled in this State that an objection to evidence will not be considered when it does not appear that it was urged before the trial judge at the time the evidence was offered. Jackson v. State, 88 Ga. 784 (15 S. E. 677) ; Jackson v. State, 93 Ga. 164 (18 S. E. 435); White v. State, 116 Ga. 573 (42 S. E. 751). Counsel for the plaintiff in error insists that the proposition that the testimony of an incompetent witness is without probative value is sustained by the ruling of this court in Eastlick v. Southern Railway Co., 116 Ga. 48 (42 S. E. 499), in which this court held that hearsay testimony is wholly without probative value, and that its introduction without objection does not give it any weight whatever in establishing a fact. This ruling has been followed in other cases. Suttles v. Sewell, 117 Ga. 214, 216 (43 S. E. 486); Equitable Mortgage Co. v. Watson, 119 Ga. 280, 281 (46 S. E. 440); Estill v. Citizens & Southern Bank, 153 Ga. 618, 625 (113 S. E. 552). The rulings in these cases do not support the proposition that competent evidence of an incompetent witness, when admitted without objection, is of no probative value. Hearsay evidence is without the sanction of an oath. The party against whom it is offered can not cross-question the party making the statement. Eor this and other reasons this court has adopted the rule that hearsay evidence is without probative value.
There is nothing to the contrary of what we hold, in Barclay v. Waring, 58 Ga. 86 (2). In that case the evidence of the surviving party was objected to, and the objection was sustained, as appears from an examination of .the record in that case. The incompeteney
In answer to the first question propounded, the jury found that the debt due by Jack Berry to Susan Berry had been paid before the sale under the power contained in the security deed. The plaintiffs complain that this answer is wholly at variance with the facts, and without evidence to support it. We think this position is well taken. In her answer the defendant admitted that Susan Berry was entitled to recover the $200 loaned by her to Jack Berry and secured by his deed to her. The defendant alleged that she had tendered the amount of this debt, principal and interest, to Susan Berry, that this tender was continuous, and that Susan Berry had refused to accept it. There was no allegation that this debt had been paid. In her last amendment the defendant alleges that the plaintiffs seized two head of mules of the value of $200, one two-horse wagon of the value of $100, and an oat crop grown on a farm which Jack Berry operated at the time of his death, and appropriated the same to their own use. She does not expressly undertake to set off the value of this property alleged to have been converted by the plaintiffs against the debt due by Jack Berry to the plaintiff Susan Berry, nor does she expressly plead the same as a payment of this indebtedness. We can only infer that it was her purpose to try to set off the value of this converted property against this debt, or to have its value applied in payment of or in extinguishment of this debt. But, for the reasons set forth in the second division of this opinion, she could not accomplish either of these purposes and defeat the sale of this land under the power of attorney in the security deed from Jack Berry to Susan Berry. In view of the above allegations of the defendant touching this debt and its non-payment, the trial judge disregarded the answer of the jury to this question, upon the ground that it was not supported by the evidence, and entered a decree finding that this debt was unpaid, and requiring the defendant to pay the same to Susan Berry under her tender and offer to pay the same.
In answer to the second question propounded, the jury found that the defendant was the owner of the equitable title of the land in dispute at the date of the sale thereof by Susan Berry under the power contained in the deed from Jack Berry to her. The plaintiffs assert that this answer of the jury to this question is at variance with the facts in the case. Treating this answer as finding that the whole equitable title to this land was in the defendant, and that Jack Berry had no title, as we are constrained to hold, the finding of the jury is without evidence to support it. Under the undisputed evidence Jack Berry paid for this land the sum of $400. In her answer the defendant sets up that he used $250 of her money in paying therefor, and that by reason of this fact an implied trust arose in her favor to the extent of the amount of her money so invested. We have seen that a resulting or implied trust may arise in favor of one who furnishes a part of the purchase-money of land, where the title is taken in another. Where several persons contribute money to pay for land and the title is taken in the name of one of them, a resulting trust arises in favor of the others pro tanto. Such a trust may arise whenever the beneficial interest is either wholly or partly in another. Civil Code, § 3739: Hall v. Edwards, supra; Burwell v. Hill, 149 Ga. 363 (100 S. E. 108); Gales v. Stokeley, 151 Ga. 718 (108 S. E. 34); Goodnight v. Goodnight, 154 Ga. 789 (115 S. E. 496). The jury having found that
In answer to the third question propounded, the jury found that the defendant had, prior to the sale under the power of sale contained in the deed from Jack Berry to Susan Berry, made a legal tender of the amount due under this security deed; and the plaintiffs contend that this finding is wholly at variance with the facts, because the alleged tender was conditional, and because under the facts testified to by the defendant she did not have the money with which to make her tender of the amount of this debt. There was evidence authorizing the jury to find that the defendant had made a legal tender of the amount due upon this indebtedness, before the sale. There was likewise evidence which would authorize a finding that her tender was conditional, and therefore not a legal tender. This was an issue of fact to be settled by the jury, and we can not say that their finding in this respect was without evidence to support it.
The other assignments of error do not require the grant of a new trial. The error dealt with in the second division of this opinion would not require the grant of a new trial, for the reason that the plaintiffs were not hurt thereby; but as the case goes back, we direct that the court below strike paragraph (o) of the answer of the defendant. In view of the error pointed out in the sixth division of this opinion, we grant a new trial; and for this reason we do not express any opinion upon the weight of the evidence.
Judgment reversed.