Hart v. Lewis, Shore & Co.

130 Ga. 504 | Ga. | 1908

Atkinson, J.

This is a suit brought by Mattie Hart against Eewis, Shore & Company, a partnership, to enjoin the cutting of timber upon a described tract-of land. The-case resulted in a verdict for the defendant, and a motion for new trial was made by the plaintiff, which being overruled, exception was taken.

1. Among other writings relied upon as evidence of title, the defendants relied upon a 'certain lease executed by W. P. Smith to M. Brioe, and an endorsement thereon as follows: “For value received I hereby transfer and assign to the Oglesby Lumber Manufacturing Company all of the timber contained in the within lease from W. P. Smith to Mitchell Brice, after having advertised the same, -and -sawmill, planer, etc., for 30 days before the first Tuesday in October, 1903, for sale, they being the highest bidder for cash, -the bid feeing $19,000 for the timber, mill, etc., they paying one half cash, balance with note for 12 months, with seven per cent, interest from date. Samuel S. Bountree, executor of M. Brice.” One ground .of the motion for new trial complains that the court erred in permitting counsel for defendants to prove by S; S. Eountree that he, as executor of M. Brice, deceased, executed the endorsement just mentioned. The ground of objection was that the endorsement was unambiguous, and appeared upon its face to be the individual undertaking of S. S. Eountree, and that the parol testimony sought to add to, change, and vary its terms. Another ground of the motion for new trial complains that the-court erred in admitting the endorsement in evidence, over plaintiffs objection that it appeared upon its face not to be the transfer of the executor of M. Brice, but the transfer of Samuel S. Eountree as an individual, and because no title had been shown in Eountree individually, and further because it purported not to-be a transfer of the lease from Smith to Brice, but a transfer of certain timber leases mentioned in said lease, and it did not contain a sufficient description of the property to satisfy the statute of frauds. In the brief of counsel for plaintiff in error, the only objections to the evidence insisted upon were those complaining of the admission of parol evidence to explain the unambiguous written endorsement, and that which related to the admission of the endorsement on account of its being an individual act of Samuel S. Eountree, rather than his act as executor. The evidence was admitted in connection with the will of M. Brice, wherein Samuel S. Eountree was nominated as executor, and given the power of sale without obtaining an order of court, and in connection with other parol evidence that Eountree did not have any private interest in the property. The writing is in effect a deed, and^ under the circumstances enumerated, should be construed as having-been executed in a representative capacity and as an execution of the power of sale for which provision was made in the will. Lee v. Giles, 124 Ga. 494 (52 S. E. 806) ; Terry v. Rodahan, 79 Ga. 278 (5 S. E. 38, 11 Am. St. R. 420). Construing the writing as. an executor’s deed, the testimony of the witness which was admitted in evidence did not tend to vary the legal effect of the instrument, and was not open to the objection urged against it. See also, in this connection, Rawlings v. Robson, 70 Ga. 595.

2, 3. The rulings announced in the second and third headnotes do not require elaboration.

Judgment affirmed.

All the Justices concur.