79 Ga. 253 | Ga. | 1888
In April, 1884, these parties exchanged real estate, and executed to each other deeds of conveyance in fee simple, each deed expressing a- consideration of $2,500 in hand paid. Miss Doggett conveyed to Simms certain city property in Atlanta, and he conveyed to her a farm in Jasper county, described' in the deed as containing two hundred acres, more or less. She was an unmarried woman of small means, residing on the city property, and made the exchange with a view to removing to and residing on the farm. She wanted a home in the country. Her object and intention were known to Simms. Pending the negotiations, he made' representations to her touching the quantity, quality and value of the land, its productiveness and past production, how many acres of bottom, how many of woodland, cost of the dwelling-house, etc. They went in company to the farm, and made
By his answer Simms denied any and all fraud, and most of the facts from which actual fraud could by any process of reasoning be inferred. Indeed, from his answer, he seems to be not only an innocent, but an injured man, rather than a wrong-doer.
The city court of Atlanta is a court of limited jurisdiction as to the trial and punishment of offences, and there was no evidence in the transcript to show what goods were stolen, whose goods, or of what value, or when, or from whose house they were taken, or who the accuser was, or that the accusation, if any, was based on a proper affidavit; when or before whom the affidavit, if any, was made; when the accusation was filed, or what it charged. The docket entry, plea and judgment furnished none of these particulars.
The rule of the English law, as it was prior to a statute passed in the present reign, is laid down in 1 Phillips Ev. 31: “If the objection to the competency of a witness is founded on criminal proceedings instituted in any other court, these proceedings must appear on their face to be regular, and be regularly proved. A document purporting to be an indictment and conviction is imperfect as a record without a caption; since the caption shows by what authority the indictment was found. And the indictment
The loss of records or papers of file is no excuse for not showing their contents, which may be done by parol evidence. 1 Greenleaf Ev. §509 and notes; Bridges vs. Thomas, 50 Ga. 378; Gardner vs. Granniss, 57 Ga. 540(6). The court erred in overruling the objection.
Having admitted these papers in evidence (5th and 6th grounds of the motion for a new trial), the court, denominating them relinquishments, charged the jury thereon (9th ground of the motion) that they would estop their makers from enforcing their title against the complainant; and further, that they could be considered in passing upon fraud or no fraud in defendant’s representations as to the houses.
For several reasons these papers were not admissible* They were created, one of them certainly, and the other apparently, pending the suit and after the parties were at issue on the question of title to the house and buildings. No party can sally forth into the world and have evidence manufactured to aid him in pending litigation. Mere recitals and declarations of strangers to the suit cannot be converted into evidence by' reducing them to writing, sign'ing, sealing, attesting and recording. If the facts recited and declared are true and relevant, why should they not be proved in the usual way, with full opportunity to cross-examine the witnesses ?
The charge of the court was founded on error in admitting the writings, and extended that error by a misconception of their nature and effect. They are not relinquishments ; they do not convey to anybody or relinquish to
Judgment reversed.