23 S.E.2d 166 | Ga. | 1942
1. The petition in a suit for recovery of land alleged that the plaintiffs' title was derived from a deed made by M. S. H. through her attorney in fact in a security deed; that after M. S. H. delivered her security deed she delivered a warranty deed to L. V. P.; that thereafter the sheriff levied certain tax fi. fas. against L. V. P. on said land, and sold the same to Bacon County, and executed a deed thereto to the county, which later deeded the same to petitioners; that defendant also claims title to said land under the same grantor, M. S. H., as do petitioners, which last allegation was admitted by the defendant. The plaintiffs having introduced in evidence on the trial all the deeds just referred to, except one from the county to them, the omission to show a conveyance *48 from the county to them did not require a finding in favor of the defendant on the theory that title was shown in a third person, it being apparent from the record that when counsel for defendant sought to show that the tax deed to the county was void because of an excessive levy, counsel for plaintiffs interrupted with the statement that "we do not intend to claim title under the tax deeds."
2. Where plaintiffs sue as grantees under a deed made by a person since deceased, the deed having been executed by one holding power of attorney, the defendant, claiming title under a former gift from the same grantor, is, under the Code, § 38-1603, an incompetent witness to testify to transactions between himself and said deceased, relating to said parol gift and his entry thereunder, followed by improvements on the faith thereof.
3. The return of the property for taxation, and the failure to return it by one who claims it as a gift, and the fact that it was sold for taxes as the property of another person, are relevant circumstances to illustrate the bona fides of the claim of ownership when that is an issue to be passed on. Even if it were irrelevant to admit some of the tax executions which were unsigned, their admission was not harmful error, when the defendant himself admitted he had paid no taxes thereon.
4. Where a witness's testimony as to a material issue has been shown to be untrue, the jury is authorized to disbelieve other portions of his testimony, although the latter not be directly contradicted by any other witness. This is especially true when such latter portions of his testimony relate to matters concerning his own knowledge or lack of knowledge, his good faith or absence of good faith, and his motives or reasons for his conduct.
5. The evidence authorized the verdict, and none of the exceptions show error requiring the grant of a new trial.
Among other defenses, the defendant set up the following: "The land here in question was given to this defendant by his mother in the winter of the year 1914. In the following year, the year 1915, defendant entered upon said land under said gift and made valuable improvements thereon by building a dwelling-house in which, throughout the years since, defendant has and still resides, and by making other valuable and substantial improvements. Since the year 1925 at the time it is claimed defendant's said mother made a deed to secure debt to Lennie Warnock, defendant was in possession of and living on said lands. At the time of the alleged conveyance to Mrs. Lillian V. Puckett defendant was living on and in possession of said lands. At the time of the purported sales to petitioners, defendant was living on and in possession of said lands; and in addition thereto, on October 3, 1939, at said alleged sale at which petitioners claimed to have become the purchasers of said land at said alleged sale by Lennie Warnock as attorney in fact of Mrs. M. S. Holton, this defendant stated to all persons, including petitioners, that this defendant was the owner of said described parcel of land, and put all persons present, including petitioners, on notice that any one buying said land at said sale would buy same subject to the claim of this defendant thereto."
On the trial the plaintiffs introduced in evidence a deed from Hancock, deputy sheriff of Bacon County, referred to above, but *50
made no proof of any deed from Bacon County to plaintiffs. It was shown that Mrs. M. S. Holton was dead at the time of the trial. A verdict in favor of the plaintiffs was returned. The defendant's motion for new trial was overruled, and he excepted.
1. It is contended in the brief of the defendant (plaintiff in error), that, the plaintiffs having in their petition alleged that in 1937 the land sued for was sold for taxes and bought in by Bacon County, and having introduced in evidence a tax deed into the county to the land involved, but failed to show any title from the county to them, an insuperable barrier was thereby raised against a legal verdict in their favor; that the plaintiffs having alleged title into the county, and having introduced in evidence a deed conveying the land to the county, they are in the position of showing paramount outstanding title out of themselves. We recognize the law to be that if at the trial an outstanding title be shown superior to that of the plaintiff, he can not recover, although it not be shown that the defendant had title. Brumbalo v. Baxter,
2. One ground of the motion for new trial complains that the court ruled that the defendant, J. C. Holton, was an incompetent witness in his own behalf to testify as to transactions between himself and his mother with respect to the land in question, and particularly that after being told by her that she would give him this land, he relying on this statement immediately entered possession and made certain valuable improvements thereon in reliance thereon. The plaintiffs claimed said land by virtue of a conveyance to them by his mother through her attorney in fact. It was a suit instituted by the transferee of a deceased person. The opposite party was therefore incompetent to testify as to transactions or communications with the deceased. Code, § 38-1603 (1); Hendrick v. Daniel,
3. Complaint is made that the court admitted in evidence, over objection, a tax deed from the deputy sheriff to Bacon County, dated December 7, 1937, conveying the land in controversy, the deed reciting that the land was levied on by virtue of five tax fi. fas. issued for state and county taxes due and owing by Lillian V. Puckett for the years 1932, 1933, 1934, 1935, and 1936, as the property of Lillian V. Puckett. The tax fi. fas. referred to were also admitted over objection. Of the fi. fas. referred to, the one for 1932, against R. R. Holton, was unsigned by print or otherwise, and upon this fi. fa. there was no entry of levy. The fi. fa. for 1933, $44.78, duly signed by the tax-collector, was against *52 M. S. Holton and Lillian V. Puckett, and on it was an entry of levy upon the land in question, but the entry of levy failed to recite as whose property said land was levied on, whether as property of M. S. Holton or Lillian V. Puckett. The fi. fa. for 1934 was unsigned in any manner, named no defendant, and stated no amount except $1 cost for the year 1934. The name Lillian V. Puckett appears at the top of fi. fa., and the tax items amounting to $34.96 are printed on the fi. fa. Upon this blank fi. fa. appears an entry of levy upon the property in question. The fi. fa. for 1935 was duly signed, was against Lillian V. Puckett for $43.94, besides interest and cost, upon which appears an entry of levy upon the property in question. Also an unsigned district and school-tax execution against Lillian V. Puckett, for an unnamed amount other than 50 cents cost for the year 1935, except at the bottom appears, "dist., sch'l tax $10.00." No entry of levy appears on this fi. fa. An unsigned state, county, and school-tax fi. fa. against Lillian V. Puckett for the year 1936, for $40.26, besides interest and cost. Upon this unsigned fi. fa. appears an entry of levy on the land in question. This ground of the motion contains the following recitals: "In this connection counsel for plaintiffs stated: `We are not claiming anything under the 1932 fi. fa., because it did not levy on this 80 acres of land, but another part of the farm was sold in 1932, and it is not in issue.' In response to the question, `Are you offering it [referring to the deed] now as the basis of a title?' counsel for plaintiffs replied, `On those who signed fi. fas. only. We are offering the other unsigned fi. fas. to show the money that we put into it.' The court then and there overruled movant's objections to said tax deed and to said unsigned tax fi. fas., admitting them for the present, and later overruling movant's renewed motion to exclude said documents from evidence, ruling, with respect to the unsigned fi. fas., `I will let them go in for the purpose of showing the amount of taxes which these parties, Mrs. Mercer and Mr. Cohen, paid out on this property, and not for the purpose of basis of title to the property.' Also, `You might introduce it as a circumstance to show what they paid for the property, and that Mr. Holton did not return it for taxes and did not pay anything on it, and that they paid the taxes.'"
On an issue such as the one before the court in the instant case, the return of property for taxation, and the failure to return it by *53
one who claims it as a gift, are relevant circumstances to illustrate the bona fides of the claim of ownership. CompareMitchell v. Crummey,
4. Although the judge refused to permit the defendant as a witness to testify to transactions with his mother, he did testify as to independent facts; and it is earnestly contended by his counsel that his testimony, supplemented by that of other witnesses, made out his defense, and entitled him to a verdict. This contention assumes that the jury were compelled to accept his testimony. It overlooks the fact that as to a material issue the defendant Holton was contradicted. Mercer testified that when, two or three days before the sale under the power, he mentioned to Holton that he, Mercer, might bid on it, Holton replied: "We have done everything we can do, and we have lost it; and bid on it, and we want all the bidders we can get, and I would rather you would own it than anybody." On the other hand, Holton swore: "I did not tell him before the sale that I wanted him to bid on my tract of land. I never have talked about that tract of land, and it has never been mentioned between me and Emory Mercer during our natural life until the morning the land was sold."
When a verdict reaches this court, stamped with the approval of the judge, all conflicts in the testimony are resolved in favor of the finding of the jury. The uncontradicted testimony of a witness, if reasonable, is to be accepted, unless the witness be impeached in some of the ways pointed out. One of these is by disproving the facts testified to by him. It is an ancient principle of law that if a witness wilfully swears falsely in a material issue, his testimony should be rejected entirely, unless corroborated. Sappington v. Bell,
5. It is further contended that a verdict for the defendant was demanded under the following testimony: The witness Knowles swore that Mrs. M. S. Holton in the year 1913, after her son, the defendant, had moved on this land, told the witness that she was giving this land to the defendant, and on another occasion told the witness that she had given it to him, and had told him to build upon it. The witness Bland testified to a statement made to him by Mrs. M. S. Holton, that "the deed was Ket's," meaning J. C. Holton. The wife of J. C. Holton testified that Mrs. M. S. Holton told her husband that "she give him that side of the place [the portion here involved], and told him to build on it and he would have a place to raise his family." Other testimony was that in 1912 or 1913 the defendant moved on the land and had been in actual possession of it ever since; that he built a house on it, dug a well, cleared a portion of it, and fenced some of the land. Code section 48-106 is not applicable, because here the possession was of lands originally belonging not to the father, but to the mother. Holton v. Mercer,
The evidence supported the verdict.
Judgment affirmed. All the Justices concur.