Bourquin v. Bourquin

151 Ga. 575 | Ga. | 1921

Hill, J.

(After stating the foregoing facts.)

1. During the trial of the case the court sustained an objection to the following questions and answers; the questions being propounded by counsel for the plaintiff, who was testifying in his own behalf: “ Q. Do you know the Newton plantation? A. Yes. Q. At the time of Gugie Bourquin’s death who owned that? A. My father.” It is insisted that the court erred in ruling out the evidence objected to, because it is insisted that the substantive fact of the ownership of real estate may be proved by parol, when there is no effort to go into the contents of any written instrument. We think that this assignment of error is without merit. The general rule is that title or ownership of real estate can not be proved by parol. The court did permit the witness to testify: “ Gugie Bourquin was in possession of the Newton plantation up to his death; he always claimed it to be his, and he exercised acts of ownership over the land.” We think the court permitted the witness to go quite far enough in his testimony on this point.

2. Error is assigned because the court sustained an objection to the following question and answer: “Q. Why was not Dr. Elliott consulted P A. He refused — Guillemain refused. He wrote that; . . and I tried to get a division, and I said, ‘ Go to Dr. Elliott,’ and he refused to go.” There is nothing to show the materiality of this evidence to the issues involved in the case, and the court did not err in ruling it out on objection.

3. On the trial the plaintiff offered in evidence the record in the case of Joseph A. Cronk v. Gugie Bourquin and Guillemain Bourquin, claimant, showing the levy of a fi. fa. in favor of Joseph A. Cronk v. Gugie Bourquin upon the Newton plantation as the property of Gugie Bourquin, and that Guillemain Bourquin filed claim to it under the deed a copy of which was attached to the petition, which deed purported to convey the Newton plantation from Gugie Bourquin to Guillemain Bourquin; this record showing that upon the trial had in that case the property was found subject to the fi. fa., and the claim not sustained. The court did not err in excluding the record. It is insisted that the record was admissible "on the question of the bona tides of the defendant in refusing to give” plaintiff his share of the estate, and relying on the deed to himself to defeat plaintiff’s claim. The record did not tend to show bad faith on the part of the defendant. Besides, the parties to that suit were not the same as in the. present case. See Gaither v. Gaither, 23 Ga. 521, 528; Bradley v. Johnson, 49 Ga. 412, 414 (3); Luke v. Hill, 137 Ga. 159, 161 (73 S. E. 345, 38 L. R. A. (N. S.) 559).

4. After the plaintiff had rested his ease the- defendant made a motion for nonsuit upon two grounds: (1)- That there was no sufficient proof that Guillemain Bourquin was the illegitimate son of Gugie Bourquin, as alleged. (2) That there was no sufficient proof that the money or indebtedness to secure which the plaintiff contended the deed exhibited was executed by Gugie Bourquin to Guillemain Bourquin was repaid to Guillemain Bourquin, or tendered to him before the filing of the suit, to divest his title thereunder. After a careful review of the evidence in the case we reach the conclusion that there is no proof showing-that Guillemain was the illegitimate son of Gugie Bourquin as alleged. The evidence for the plaintiff on that subject was of the vaguest and most indefinite character. The plaintiff himself testified that he and Guillemain Bourquin and Polignac Bourquin lived in the same house with Gugie Bourquin and Louisine Bourquin as their children. Guillemain was always recognized by him as his brother until a short while before the present suit was filed, when ’plaintiff “ was informed ” that Guillemain was the ■ son of his father and a negro woman. Several witnesses, white and colored, who lived in the neighborhood where the Bourquins resided, testified in the case; but at most the evidence was barely .sufficient to raise a suspicion that Guillemain was not the legitimate son of his father. Indeed the evidence showed that Gugie Bourquin in his lifetime stated that Guillemain, the oldest of the children, was a child by a former wife. The evidence discloses, as stated, that the three sons lived in the same house with the father and supposed mother, and that Guillemain was brought up as one of the family and was treated as such. The three children all attended the same school, which was a school for white children. A careful examination of the entire evidence in this case fails to show anything, except the barest suspicion, that Guillemain was not the legitimate child of a lawful wife; and this being so, the plaintiff has failed to make out his case based on the allegation that Guillemain is an illegitimate, and that plaintiff is the sole heir of his father — assuming that plaintiff has satisfactorily accounted for the absence of his brother Polignac Bourquin for more than seven years, unaccounted for, without leaving wife or children.

On the other ground of the motion to nonsuit, we also think that the motion should be sustained. The plaintiff has failed to show that the deed from Gugie Bourquin to Guillemain Bourquin was made to secure a debt. The deed purports on its face to convey an absolute title, but it is contended by the plaintiff that it was merely for the purpose of securing a debt which has been paid out of the rents and profits of the land conveyed. Just what these were, if any, does not appear with reasonable certainty. It should be proved just what the amount of the debt was, and what the proceeds from the land were; and this has not been done. It is not sufficient to affirm that the rents and profits from the land in controversy were equal to or greater than the debt owing by the grantor to the grantee. As stated above, the deed from Gugie Bourquin to Guillemain Bourquin appears on its face to be absolute, conveying the fee-simple title to Guillemain Bourquin. It was executed, according to its date, more than twenty-five years ago; and in order to have this conveyance canceled the plaintiff contends that the defendant, Guillemain, undertook to reconvey the land in controversy to Gugie Bourquin, upon “ conditions.” It appears that no reconveyance was to be had except in the event that Gugie Bourquin complied with the “conditions,” and there is no evidence showing' what these conditions were, nor whether they had been complied with. Therefore the plaintiff has failed to make out such a case as would entitle him to recover. This being so, the court below very properly sustained the motion to nonsuit.

Judgment affirmed on the main bill of exceptions; cross-bill dismissed.

All the Justices concur.