Calhoun v. Calhoun

| Ga. | Jul 11, 1888

Simmons, Justice.

J. R. Calhoun et al. brought complaint for land against Samuel II. Calhoun. On the trial the plaintiffs proposed to prove by John Ladson the contents of a deed shown to be in the State of South Carolina and never to have been in Georgia, conveying certain property to one Patterson, in trust for Mary McElrouath, free from the control, etc. of any husband she might have, for and during her life, and at her death to be equally divided among her children; share and share alike. Counsel for the plaintiff stated in their place that they expected to prove that the plaintiffs were the only children or legal representatives of children of the said Mary, who, subsequently to the execution of said deed, married J ames J. Calhoun, Sr.; also, that the land in dispute was purchased with the proceeds of the sale of said property conveyed in said deed by the said James J. Calhoun, Sr., he taking the deed to the land in his own name; and that the defendant, who is his son by said Mary, purchased the land from him with full notice of all the facts; also that the said Mary died before the commencement of this suit. It was further shown that the deed was recorded over thirty years ago, in South Carolina, and that it was in existence a year or two ago, and that the plaintiffs had made no effort to get the original deed or a certified copy thereof. This evidence was rejected by the court. The plaintiffs closed their case, and the court granted a nonsuit. Whereupon the plaintiffs sued out this bill of exceptions, alleging error in the refusal of the court to allow the testimony of Ladson.

It will be observed that while the plaintiffs proposed to show the existence of the deed two years prior to that time, they did not offer to show its execution. We think the proper rule of law in regard to the admissibility of secondary evidence is, not only that the plaintiff must show the existence of the deed, but that he must show that it was properly executed. It is possible that the deed may have been written and signed by the grantor, and yet may never have been executed according to law. In the case of Durham vs. Holeman, 30 Ga. 624, it was held that, “ before secondary evidence of the contents of a lost deed can be gone into, the existence and execution of such deed must be established by proof.” See also Bigelow vs. Young, Id. 123. This deed being beyond the jurisdiction of the court, it was the same as if it had been lost; and the cases just cited apply. In the case of White vs. Clements, 39 Ga. 232, it was held that “ the contents of a paper beyond the jurisdiction of the court and not in the power of the party wishing to use it, may, without doubt, be proven by a proven copy. But it must be proven that such an original paper does or did in fact exist, and was duly executed.”

"We think, therefore, that the court did right in excluding this testimony ; and the judgment is affirmed.