148 Ga. 805 | Ga. | 1919
Kramer made a loan of money to Vaughn, and took from him a promissory note therefor, payable to Kramer, and a deed to described land to secure the debt. Kramer' died, leaving a will whereby he gave to his widow the note and all of his interest in the land conveyed as security, for its payment. The will specifically stated the transaction between the testator and Vaughn, and authorized the widow to sue on the note in the event of its non-payment, and to reconvey the land to Vaughn for the purpose of its sale under the judgment obtained upon the note, according to the statute in such cases (Civil Code, § 6037). The executor expressly consented in writing to the legacy, both as to the note and the security deed. The note was not paid, and the widow brought suit thereon against Vaughn, and obtained a judgment. She reeonveyed the land to Vaughn by a quitclaim deed, which was duly and properly filed and recorded; and afterward the execution issued upon the judgment was levied upon the land as Vaughn’s property. Spradlin interposed a statutory claim to a specified part of the land; and on the trial of the issue made in the claim ease the court permitted Vaughn to testify, that, subsequently to the execution of the security deed to Kramer, Vaughn, for a valuable consideration, sold and conveyed to Spradlin, by a warranty deed, the portion of the land claimed; and that the sale and conveyance were made with the actual knowledge and expressed consent of Kramer, who really advised Vaughn and Spradlin to make the trade, and aided them in carrying it out in the execution of the conveyance. ■ This testimony was objected to by the plaintiff in execution, on the ground that as to the title to Vaughn’s note and to the testator’s interest in the security deed, the plaintiff was the assignee and transferee of her deceased husband, Kramer, who in his will gave and bequeathed to her Vaughn’s note and all
1. Our statute (Civil Code, § 5858) declares: “1. Where any suit is instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person, as to transactions or communications with such insane or deceased person, whether such transactions or communications were had by such insane or deceased person with the party testifying or with any other person.” And “4. Where a person not a party, but a person interested in the result of the suit, is offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any reason be incompetent.” The controlling question in the case is whether Mrs. Kramer, the plaintiff in execution, who is the legatee and devisee, under the will of her husband, of Vaughn’s promissory note, and of all the interest of the testator in the deed given to secure the note which the testator held at the time of his death, is the assignee and transferee as to such property; within the meaning of the evidence act above quoted, so as to exclude the testimony of Vaughn, who is interested in the result of the suit, as to transactions and communications he had with the testator.
In Hendrick v. Daniel, 119 Ga. 358 (46 S. E. 438), it was held: "Under Civil Code, § 5269 [C. C. 1910, § 5858], par. 1, in an action of ejectment the opposite party to the grantee of a deed from a deceased person is not competent to testify in his own behalf to conversations and transactions with such deceased person, affecting adversely the title conveyed by the deed; and under par. 5 the agent of such a party is likewise incompetent.” We quote liberally from the able opinion rendered by Mr. Justice Candler in that case. He said: "The literal meaning of the word ‘endorsee’
In Hendricks v. Allen, 128 Ga. 181 (57 S. E. 224), the decision in Hendrick v. Daniel, supra, holding that the grantee in a conveyance of land was an assignee or transferee, was followed. In Turner v. Woodward, 136 Ga. 275 (71 S. E. 418), it was held that the grantee or donee in a deed of gift who was the defendant in the action was an assignee or transferee of the title within the meaning of the Civil Code, § 5858, par. 1, and that the plaintiff was incompetent as a witness to testify to transactions between himself and the deceased grantor or donor of the defendant. In Hudson v. Broughton, 147 Ga. 547 (94 S. E. 1007), it was
Considering the beneficent purpose of the General Assembly in passing and amending the evidence act as set forth in section 5858 of the Civil Code, and as was so clearly and forcibly expressed by Mr. Justice Candler in Hendrick v. Daniel, supra, and the ruling in that case and the subsequent cases approving and following it, to the effect that a grantee and a donee in a conveyance of land are assignees and transferees in contemplation of that act, we reach the confident conclusion that a legatee and a devisee are also assignees and transferees within the contemplation of' that act; and therefore, in the circumstances of this case, it was error to permit the witness' Vaughn, who was interested in the result of the case, to give the testimony objected to, as to transactions and communications between himself and the testator of the plaintiff.
In McMechen v. McMechen, 17 W. Va. 683 (41 Am. R. 682), it was held that the devisees of a testator are his assignees within the meaning of a statute of that State, declaring that “A party shall not be examined in his own behalf in respect to any transaction- or communications had personally with a deceased person, against parties who are executors, administrators, heirs at law, or next of kin, or assignees of such deceased person, where they have acquired title to the cause of action from or through such deceased person, or have been sued as such executors, administrators, heirs at law, next of kin, or assignees.” In the opinion it was said: “It has been held in New York, upon the construction of a statute similar to ours, that the devisees of real estate are the assignees of the testator within the meaning of their statute, and we think properly so; and therefore the devisees of the real estate under the will of Sheperd McMechen are the assignees of said Sheperd
This court, in Austin v. Collier, 112 Ga. 247 (37 S. E. 434), held that legatees under a will were not indorsees, assignees, or transferees, or personal representatives of the deceased, so as to render the plaintiff, who sued to recover land from them, an incompetent witness as to. transactions and communications between the plaintiff and the testator. Counsel for the plaintiff in the present case have requested that the decision just recited be reviewed and overruled. After mature consideration, we are of the opinion that the decision so rendered was erroneous; and we overrule the same in so far as it conflicts with the ruling here made.
Judgment reversed.