Massell Realty Co. v. Hanbury

165 Ga. 534 | Ga. | 1927

Lead Opinion

I-Iinrs, J.

(After stating the- foregoing facts.)

The first question for our decision is whether or not the contract of sale is sufficiently certain and definite as to be capable of being enforced by decree for specific performance. Under our statute of frauds, all contracts for the sale of land or any interest therein must be in writing, signed bjr the party to be charged therewith, or some person by him lawfully authorized. Civil Code (1910), § 3222, par. 4. Every essential element of a sale must be expressed in writing to meet the requirements of the statute. Tippins v. Phillips, 123 Ga. 415, 417 (51 S. E. 410). In other words, all the essential terms of a contract of sale must be embodied in the writing. The writing in this case embodies the name of the purchaser and the names of the sellers. It sufficiently describes the land bought. It states the gross purchase-price to be paid, which is $10,000. Of this sum $2,000 was to be paid in cash on or before November 1, 1923. No question is made as to the sufficiency of the statement of these terms in the writing. The purchaser agrees to “assume loan of approximately $900.00 now outstanding against said property, which loan bears eight per cent, interest, matures in about eighteen months, and can be taken up at any time prior to maturity by paying interest to date f and to give two notes for the balance of the purchase-price, maturing on or before twelve -months, and bearing seven per cent, interest. It is insisted that the terms of the writing, touching the loan to be assumed by the purchaser, and the two notes to be given by the purchaser for the balance of the purchase-price, are so vague, uncertain, and indefinite as not to comply with the statute of frauds. Does the writing sufficiently describe the loan to be assumed by the purchaser? The contract describes the loan to be assumed by the purchaser as one outstanding against the property at the date of the contract, and of the approximate amount of $900, bearing eight per cent, interest from date, maturing in about eighteen months, which could be retired before maturity by paying interest to date of its retirement. The description of the amount of the loan and the date of its maturity is indefinite. The exact amount of the loan and the exact date of its maturity are not stated. But the loan assumed is one outstanding against the property. To he outstanding against the property it must be one in writing, and secured by mortgage, deed, or other instrument. The writing evidencing the loan and the instrument securing it would furnish an accurate description of the loan assumed by the purchaser. The contract thus furnishes a means or key by which the description of the loan may be made certain and definite. The loan assumed by the purchaser can thus be made certain without resort to parol evidence. This court has held that the maxim, id certum est quod certum reddi potest, applies to the description of land in a deed. Swint v. Swint, 147 Ga. 467 (94 S. E. 571). It follows that this maxim is equally applicable in contracts for the sale of land. So as the mortgage, the payment of which is assumed by the purchaser, is one outstanding against the property, the exact amount thereof can be ascertained either by an inspection of the instrument or from its record.

In Trust Company of Georgia v. Neal, 161 Ga. 965 (132 S. E. 385), which is relied upon by the plaintiffs in error, the language in the contract of purchase, “assumption of loan $9500.00,” was held by the majority of the court to be too indefinite to identify any particular loan, and for this reason it was held the writing did not meet the requirements of the statute of frauds, for which reason it was void. The Chief Justice and the writer dissented. The instant case, however, does no.t fall within the ruling announced in that case. The loan assumed in this case was one of approximately $900, and was one outstanding against the property purchased at the date of the purchase. Furthermore, the loan was described as bearing interest at eight per cent., and was one which could be taken up at any time prior to maturity by paying interest to date. Being a loan outstanding against 'the property, it necessarily was an encumbrance then upon the property, the exact amount and the exact date of maturity of which could be easily ascertained from the instrument itself which created the encumbrance upon the property sold, or from its record. So the ease at bar does not come within the ruling made by the majority in the ease cited. Furthermore, a promise by the purchaser of lands that are subject to a mortgage or other encumbrance, to assume and pay off the same as a part of the consideration or price, is not required to be in writing, because it is not a promise to pay the debt of another, but it is a promise to pay to a third party a debt which the purchaser owes to the seller. The fact that in thus paying his own debt the purchaser incidentally discharges a debt of his grantor does not bring the promise within the statute of frauds. 20 Cyc. 174, C-2; Ford v. Finney, 35 Ga. 258; Martin v. Copeland, 77 Ga. 374 (3 S. E. 256); Cowart v. Singletary, 140 Ga. 435 (4) (79 S. E. 196, 47 L. R. A. (N. S.) 621, Ann. Cas. 1915A, 1116); Herrin v. Abbe, 55 Fla. 769 (46 So. 183, 18 L. R. A. (N S.) 907); Tuttle v. Armstead, 53 Conn. 175 (22 Atl. 677); 29 Am. & Eng. Enc. Law (2d ed.), 916, note 1; 27 C. J. 163 (§ 56), 3, and cases cited in note 74.

As the promise of a purchaser of land to pay from the purchase-price a debt of the seller represented by a mortgage thereon is not one required to be in writing under the statute of frauds, such promise or undertaking can be proVed either by parol or writing; and where the parties do undertake to reduce the terms of the promise to writing, any ambiguity or indefiniteness therein can be explained by oral proof, if such proof does not vary or contradict the terms of the writing. The above principle, which has been recognized by the decisions of this court and by numerous decisions in other jurisdictions, was not considered in Trust Co. v. Neal, supra. So we are of the opinion that the contract of sale was not void because it did not meet the requirements of the statute of frauds in describing the mortgage which the purchaser assumed and undertook to pay from the purchase-money of the land bargained for.

Furthermore, the contract of purchase was not void because of insufficient description of the two notes which the purchaser was to give. The purchaser was to pay for this property $10,000. , Of this amount $2,000 was to be paid in cash on or before November 1, 1923. The purchaser was to pay the outstanding loan of approximately $900 on the property, with the interest due thereon, and then was to give two notes to the sellers for the balance of the purchase-money, to mature on or before twelve months, with seven per cent, interest. There were two joint sellers, who each owned an undivided half interest in the land sold. They were jointly and equally entitled to this balance of purchase-money. This being so, the evident purpose of giving two notes was to have the amount of the balance of the purchase-money going to each seller represented thereby. Whatever balance of purchase-money was due to the sellers, after deducting the cash payment and the loan upon the property, would be payable in equal amounts to the two sellers, if the loan on the property was their joint loan. If this loan was that of one of the sellers, then one of the notes 'should be for an amount equal to one half of the balance less the loan, or $3100, and the other note should be for $4900. Evidently the requirement of two notes was for the convenience of the sellers in dividing such sum, so as to give to each the amount of balance going to him or her. So we do not think that the portion of the contract relating to these notes was so vague and uncertain as to render the contract void under the statute of frauds. This case differs from Crawford v. Williford, 145 Ga. 550 (89 S. E. 488), in which the seller agreed to sell on terms of one half cash, the balance to be paid in one to four years with interest at seven per cent. In the case cited a majority of the court held that the amounts of the notes to be given and the dates upon which they were to be paid were left uncertain, and thus did not meet the requirements of the statute of frauds; and for this reason the contract of sale was not enforceable.

The contract of sale provides that the notes to be given for the balance of the purchase-money as above were to be indorsed by Ben J. Massell. It is urged by his counsel that he is not individually bound by this contract, for the reason that he did not execute the contract in his individual capacity. The original contract was signed, “Massell Bealty Co., by Ben J. Massell, Purchaser.” Undoubtedly the contract of purchase was the individual contract of the company. In the proposal of the company to purchase this property it offered to do so upon the terms therein named, including the proposition to have the notes given for the deferred payments of the purchase-money indorsed by Ben J. Massell. When the offer was accepted by the owners, the offer and acceptance constituted an agreement between the purchaser and the sellers, by which the former was to give notes for the deferred payments, indorsed by Massell. If the offer made by the company through Massell contained a stipulation that he would sign these notes, then when the offer was accepted by the sellers the two papers created an agreement between the sellers and Massell, by which the latter was to indorse these notes, if such agreement meets the requirements of the statute of frauds. On behalf of his company Massell made an offer to the owners that his company would buy this property upon certain terms, including the stipulation that he was to indorse the notes of his company given for the deferred payments. Properly construed, this was clearly an agreement upon his part to indorse these notes. It is not to be assumed that he would present to the owners an oiler executed on behalf of his company by himself, and that the company would give for the deferred payments notes indorsed by him, when he did not intend and did not agree to indorse them. On the contrary the proper construction of this instrument is that Mas-sell agreed to indorse these notes for his company. Is such agreement on his part obnoxious to the statute of frauds? An agreement to indorse the notes of another, given in payment of the latter’s debt to a third person, must comply with the requirements of the statute of frauds. Civil Code (1910), § 3222, par. 2; 27 C. J. 164 (§ 61), 2. These are met when the writing is signed by the party to be charged therewith, or some person by him lawfully authorized. Necessarily the offer to purchase in this case was made by the company with the consent and authority of Mas-sell. When he affixed the signature of the company to the writing, he will not be heard to say that it was done without his authority. So in effect he authorized the company to make an offer containing a stipulation that he would sign the company’s notes for the deferred payments on this land. It follows that his promise to indorse these notes is shown by a writing the execution of which he personally effected. When this promise to indorse can thus bo shown by a writing which he executed on behalf of his company, the case is not obnoxious to the statute of frauds. All that the statute of frauds requires is written evidence of the agreement. The memorandum may even consist of entries made by the party to be charged on his or his agent’s books. So entries in the records of a corporation may prove a contract by it. Clark on Contracts, 83; Borum v. Swift, 125 Ga. 198, 202 (53 S. E. 608). Massell necessarily assented to the terms and stipulations embraced in this offer. So we are of the opinion that the case does not fall within the statute of frauds.

It- is insisted by the defendants that the deed executed by the plaintiffs and tendered to the Massell Eealty Company contains a description different from that set out in the contract of sale. The description in the contract of sale is as follows: “Improved property in the City of Atlanta, Ga., being a residence on lot 59 x 190 feet, more or less, and known as # 667 Whitehall St.” The description in the deed is substantially as follows: All that tract of land, lying in the City of Atlanta, part of land lot 108 in the 14th district of Fulton County, Georgia, and being a part of the northeast part of land lot 37 in the survey of the old Whitehall property made by Hennery, and more particularly described as follows: Commencing on the east line of formerly Sage’s property at a point 272 feet south of Oak Street, and running thence east parallel with Oak Street 198 feet to the west side of Whitehall Street, thence south along the west side of Whitehall Street 59-1/2 feet, thence west parallel with Oak Street 179 feet, thence north 57-1/2 feet to the place of beginning, the house thereon being known as # 667 Whitehall Street. It will thus be seen that there is no substantial variance between the description of the land sold in the contract of sale and in the deed proffered by the plaintiffs to the defendants before the institution of this suit. The description in the deed is more complete than that in the contract of sale, but not substantially different from that embraced in the contract. The mere fact that the description in the contract of sale would seem to indicate that the lot was a parallelogram, and that the description in the deed giving the dimensions of the lot shows that the lot is not a parallelogram, does not render the variance fatal. Both in the contract of sale and in the deed the property sold is described as a residence and lot known as # 667 Whitehall Street. The dimensions of the lot in the contract are given as more or less. In the contract of sale the property is described as a residence and lot “known as # 667 Whitehall St.” When the purchaser gets this residence and lot, it gets what it purchased. If the actual dimensions of the lot sold, which is so described, are somewhat different from its actual dimensions, its dimensions in the contract of sale may be rejected as surplusage, under the maxim falsa demonstratio non nocet. Johnson v. McKay, 119 Ga. 196 (45 S. E. 992, 100 Am. St. R. 166).

Under the foregoing rulings, it follows that the court did not err in overruling the demurrer to the petition.

Pending the suit one of the plaintiffs died, and his administratrix was made a party in his stead. The defendants assign error upon the overruling of a motion to dismiss the cause because the heirs at law of the vendor were not made parties to the suit. This suit was brought by the vendors for specific performance of a contract for the sale of land, and to recover from the vendee the amount of the purchase-money. Could the suit proceed in the name of the surviving vendor, and in the name of the administratrix of the deceased vendor, without making the heirs of the latter parties to the suit? In jurisdictions where lands descend to the heirs upon the death of their ancestors, a bill for specific performance of a contract of sale will not lie, at the instance of the vendee, against the personal representative of the deceased vendor, without making the heirs of the vendor parties to the suit. Porter v. Worthington, 14 Ala. 584; Hale v. Darter, 24 Tenn. 78; Roberts v. Marchant, 1 Hare, 547; Hamilton v. Walker, 12 Grant’s Ch. (U. C.), 172; Gallatin Land &c. Co. v. Davis, 44 W. Va. 109 (28 S. E. 747); Morgan v. Morgan, 2 Wheat. (15 U. S.), 290 (4 L. ed. 242); Duncan v. Wickliffe, 5 Ill. 452; Miller v. Henderson, 10 N. J. Eq. 320; 36 Cyc. 766, 2-b (I). So devisees of land involved are necessary parties defendant. Craig v. Johnson, 3 J. J. Marsh. (Ky.) 572; Newark Sav. Inst. v. Jones, 35 N. J. Eq. 406; 36 Cyc. 766, 2-b (II). The personal representative of a deceased vendor is a necessary party, as the decree would require the payment of the purchase-money to him. Coles v. Feeny, 52 N. J. Eq. 493 (29 Atl. 172). Hsually the personal representatives of the vendor are not necessary parties, where, from full performance by the vendee before he brings suit, they have no interest in the case. Watson v. Mahan, 20 Ind. 223; McCabe v. Healy, 138 Cal. 81 (70 Pac. 1008). The administrator, however, is a proper party defendant, since the property in question might be needed to pay decedent’s debts. Colfax v. Colfax, 32 N. J. Eq. 206.

Where the contract of the vendor, which it is sought to enforce, is to devise the whole estate, the executor is a necessary party. Kempton v. Bartine, 59 N. J. Eq. 149 (44 Atl. 461). The heirs also are proper parties where the question may arise whether the land passed by devise. Hubbard v. Johnson, 77 Me. 139. Heirs and devisees are necessary parties where the land of the deceased vendor descends to his heirs at law or devisees, for the reason that the administrator has no title which he can convey to the purchaser. 'Generally the heirs of a vendor must be joined in a suit brought by the personal representative against the vendee for specific performance, since the decree divests them of the legal title which vested in them on the death of their ancestor. Hays v. Hall, 4 Porter (Ala.), 374 (30 Am. D. 530); Mitchell v. Shell, 49 Miss. 118; Collins v. Leary, 74 N. J. Eq. 852 (71 Atl. 603); Coles v. Feeney, supra; Muldrow v. Muldrow, 32 Ky. 387; McQuitty v. Wilhite, 218 Mo. 586 (117 S. W. 730, 131 Am. St. R. 561); 36 Cyc. 765, 2-E, e. (I). On the death of the vendor, since his interest is regarded in equity as personalty, it passes to his personal representatives, and they may sue to enforce it, and join' the heirs or devisees for the purpose of compelling conveyance of the legal title from them to the vepdee. Hurst v. Hensley, 7 Blackf. (Ind.) 373; Coles v. Feeney, supra; Miller v. Miller, 25 N. J. Eq. 354; Wheeler v. Crosby, 20 Hun (N. Y.), 140. It is incumbent upon heirs or devisees to whom the legal title to land passes upon the vendor’s death, to convey to the vendee the right or title purchased by him, although they are not mentioned in the contract of sale. Miller v. Goodwin, 8 Gray (74 Mass.), 542; Brandon v. West, 28 Nev. 500 (83 Pac. 327); Hill v. Ressegieu, 17 Barb. (N. Y.) 162; Glaze v. Drayton, 1 Des. Eq. (S. C.) 109; Hibbert v. Aylott, 52 Tex. 530.

In a suit by the personal representative of a deceased vendor, for specific performance of a contract of sale, the heirs at law are necessary parties, not only to convey the legal estate upon payment by the purchaser, but because they have the right to have the alleged contract proved. Hamilton v. Walker, supra. In Roberts v. Marchant, 1 Ph. 373, Lord Lyndhurst said: “It was argued that by the contract the estate was converted into personalty, and that the heir at law had no interest in the matter. But that is to assume the very point in controversy; for the heir at law may dispute the contract and controvert its validity.” But in the case at bar the suit was originally brought by the vendors, for specific performance of the contract by the vendee. The vendors set up the contract of sale, aud alleged that they were able, ready, and willing to convey the property to the vendee upon the payment of the purchase-money. We have here a solemn admission in judicio by the vendors of the making of the contract. The heirs at law of the deceased vendor are bound by this admission. They can not dispute it. Therefore there is no necessity to make them parties in order to give them an opportunity to contest the existence of the contract. But it may be said that the title to an undivided half interest in the land involved passed to the heirs at law of the deceased vendor upon his death, and that they should be made parties so that they could be required by the final decree to convey the land to the purchaser upon the payment of the purchase-price. The suit having been instituted by their ancestor, and he having set up this contract in his petition and sought to have it specifically performed, his heirs are estopped by this admission in judicio from denying or contesting the contract. The contract of sale by the deceased vendor converted this realty into personalty, over which his personal representative has full control. Hays v. Hall, supra; Longwell v. Bentley, 23 Pa. St. 99; Griffith v. Stewart, 31 App. D. C. 29 (5). In such circumstances the purpose of the suit is to force the purchaser to pay the purchase-money; and the cause of action for its recovery vests in the personal representative of the deceased owner, and not in his heirs at law. Bryant v. A. C. L. R. Co., 119 Ga. 607 (46 S. E. 829). Upon the payment of the purchase-money to the personal representative of the deceased vendor, we are of the opinion that the administrator, under authority conferred by the final decree in this case, can convey this property to the purchaser. So the court did not err in overruling the oral motion to dismiss the action because the heirs of the deceased vendor were not made parties.

It is insisted that the verdict is contrary to the evidence, because the plaintiffs failed to show a good title to the land in themselves. The purchaser set up certain alleged defects in the title. One is that in the chain of title is a sheriff’s deed, and that the fi. fa. under which the sale was made was not recorded, nor was it introduced in evidence. This fi. fa. issued upon a judgment obtained in Fulton superior court by John C. Franklin against J. R. D. Ozburn, principal, and Matthew Ozburn, indorser. The record in this case could not be found after due search. The plaintiffs introduced in evidence an exemplification from minute book E, of Fulton superior court, April term, 1867, containing a statement of the case and the verdict in favor of the plaintiff; also an exemplification from execution docket B of Fulton superior court, containing an entry of the execution in said case. This extract showed that the execution was numbered 1908, October, 1867. It contained the names of the attorneys for the plaintiff, a statement of the case, the amount of principal, interest, clerk’s cost, sheriff’s cost, and fifty-cent stamp. It recited that the judgment was obtained on April 8, 1867, that this fi. fa. issued on May 24, 1867, and that it was handed to the sheriff on February 26, 1868. It also contained a receipt by the clerk oE the cost due on the fi. fa. on February 10, 1870. Plaintiffs introduced an exemplification from the sheriff’s docket of Fulton County, page 163, showing an entry of said fi. fa. as number 108, Fulton superior court, October term, 1867. It contained a statement of the case, the date of the judgment, the items of principal, interest,' clerk’s costs, sheriff’s costs, jury fee, and stamp; a recital that the plaintiff had paid the costs amounting to $14; an entry of transfer of this fi. fa. by the plaintiff to S. B. Hoyt on January 31, 1870; a receipt by the clerk to Hoyt for $13 for his costs on this fi. fa., dated February 28, 1870; an entry of levy of this fi. fa. upon a described tract of land known as the Griffin place, with the exception of a graveyard, as the property of James B. D. Ozburn, embracing the property in dispute, dated September 3, 1870, with a recital of sale of this land before the court-house door in the City of Atlanta, within the legal hours of sale, and of its purchase by Mary E. Ozburn as the highest bidder. This entry shows the appropriation of $13.25 of the purchase-money to the payment 'of the levy, advertising, sheriff’s commissions for selling, and stamp, and gives the net proceeds of the sale after the payment of these expenses; and is dated October 4, 1870. This extract likewise contains another entry on the fi. fa., dated October 5, 1870, showing the application of the net proceeds of the sale of this property by the sheriff to another fi. fa. against Ozburn, of older date, and that this fi. fa. had been handed to S. B. Hoyt. All of the above entries were signed by the sheriff. The plaintiffs claim title under Mary E. Ozburn, by derivative conveyances.

These exemplifications show the rendition of a verdict in favor of a named plaintiff against named defendants, the date and amounts of the judgment, the issuing of an execution on this judgment by the clerk of that court, its entry on the execution docket of that court, the delivery of the execution to the sheriff, its entry upon the execution docket kept by that officer, its levy upon a described tract of land, except a graveyard reserved, this tract embracing the property involved in this case, the advertisement and sale of this land under the levy, and that Mary E. Ozburn purchased the same at such sale and paid the purchase-price thereof to the sheriff. In these circumstances this proof was sufficient, without the production of the execution, to show title in Mary E. Ozburn, obtained under a sale regularly made by virtue of judicial process issuing from a court of competent jurisdiction. Such sale conveyed the title as effectually as if made by the person against whom the process issued, and the purchaser at such sale, or those claiming under her, are not required to show title deeds back of his purchase, unless necessary to show title in the person whose interest he purchased. Civil Code (1910), §§ 6051, 6052; Sweeney v. Sweeney, 119 Ga. 76, 78 (46 S. E. 76, 100 Am. St. R. 159). So the objection that the plaintiffs failed to show good title, because they did not produce the execution under the levy of which the sale was made at which Mary E. Ozburn obtained title, is not well taken.

The next objection to the validity of the title is that under a prior conveyance embracing the land involved, and forming a link in the chain of title of the plaintiffs, there was reserved a graveyard, and that there is no proof that this graveyard was not wholly or partially upon the land which plaintiffs sold to the defendant. There is in the record proof that this graveyard was not located on the land involved in this case, but on the contrary was located on an adjacent lot. Furthermore, it may be assumed that the slightest examination or inspection would disclose the fact that there is or is not a graveyard upon this land.

Another objection to the title is that Rosa Hanbury was entitled, as against certain persons under whom plaintiffs claim, to a life-estate, and that there is nothing of record showing her death. The evidence clearly proves the death of Rosa Hanbury, and the date of her death. This case is different from Horovitz v. Mendel Real Estate &c. Co., 145 Ga. 866 (90 S. E. 57). In that case the purchaser of land under an executory contract agreed to buy if the title was satisfactory to him; and it was held that under a contract so conditioned the purchaser was entitled to receive a title enabling him to hold the land free from the probable claim by another, and reasonably free from any doubt which would interfere with its market value; and that where the question of whether the title tendered the purchaser is fairly debatable, equity will not force the vendee to perform. In the case at bar the question of the validity of the title of the plaintiff is not fairly debatable, and there is no provision in the contract of sale in this case that the title was to be satisfactory to the purchaser.

In their motion for new trial the defendants allege that the court erred in admitting, over the objection that they were irrelevant and hearsay, the entries on execution docket B of Fulton superior court, and the entries on the docket of the sheriff, of the execution in favor of John C. Franklin against James R. D. Ozburn, principal, and Matthew Ozburn, indorser, and the entries of levy and sale under said execution, with the name of the purchaser thereof. If this ground is full and complete enough to inform this court of the contents of these entries, we are of the opinion that they were admissible against the defendants, for the reason given in the sixth division of this opinion.

Plaintiffs offered in evidence an affidavit of Thomas P. Han-bury, deceased, the averments of which are fully set out in the statement of facts preceding • this opinion. Counsel for the defendants objected to the reception of this affidavit, upon the grounds that it was merely a statement by Thomas P. Hanbury, out of court, with reference to the title to this lot, a hearsay declaration of Hanbury, who was deceased, and that it was not admissible for the further reason that there was nothing in it binding on the defendant in reference to this title. The court overruled this objection, and stated to the jury that he was admitting this affidavit and certain correspondence as a history of the transaction, what “they claim” the parties did with reference to the alleged objections that were urged, and that the legal effect of this evidence was a matter that the court would take care of in the proper way, but that the court admitted the affidavit as part of the history of what the parties claimed was done. Movants excepted to the overruling of their objection, and to the admission of the affidavit in evidence, for all the reasons stated in their objection; and further alleged that the court erred, in connection with the admission of this affidavit over their objection, in failing to instruct the jury, at any time during the trial, that they should not consider said affidavit as any evidence of the truth of the facts therein stated. The history of this affidavit is as follows: Hassell Realty Company employed an attorney to investigate the title to the property involved in this suit. This attorney reported that in six of the back deeds conveying the land of which the property involved is a part, an old graveyard was reserved, and that proof should be made that this graveyard was not located on the property involved. He further reported that the plaintiffs claimed title as heirs at law of Rosa A. Hanbury, and through other of her heirs at law; that Rosa A. Hanbury had a life-estate in this land; and that clear, proof should be offered that she was dead and that the plaintiJfs owned a full interest in fee simple. In order to furnish the proof thus required, this affidavit of Thomas P. Han-bury was made and turned over to Massell Realty Company. Thereafter Thomas P. Hanbury died. On the trial of this case it was necessary to prove that the plaintiffs, T. P. Hanbury and Leila G. Collings, were children of T. E. and Rosa A. Hanbury; that Rosa A. Hanbury was dead; that her husband, T. E. Hanbury, and her children Thomas P., Leila G., and Mary L. Hanbury, were her sole heirs at law. Clearly the declarations of Thomas P. Hanbury, touching the above matters, were admissible, he having died since the making of this affidavit. Pedigree, including descent, relationship, birth, marriage, and death, may be proved by the declarations of deceased persons related by blood or marriage.' Civil Code, § 5764. The objection to the admission of this affidavit was that the declarations of the affiant touching the matters referred to in the affidavit were hearsay and not binding upon the defendants. Clearly the declarations of the affiant touching the pedigree of his father, his mother, and their heirs were an exception to the hearsay rule, and were admissible under the code section cited. Other statements in the affidavit, touching the title under which the plaintiffs claimed, and the existence of a graveyard, were clearly objectionable, and should have been excluded upon proper objection. The objection to the admission of this affidavit was urged to it as a whole, and to declarations therein some of which were clearly admissible, and some of which would have been inadmissible upon proper objection. It is- a familiar rule that where objections are urged to evidence as a whole, some of which is admissible and some of which is inadmissible, the court does not commit reversible error in admitting the evidence so objected to. Furthermore, the objectionable statements in this affidavit were shown to be true by the undisputed evidence in the case; and the admission of these statements, and the failure of the judge thereafter to instruct the jury as to their effect, do not require the grant of a new trial, as these errors were harmless.

The defendants complain that the court erred, at the conclusion of the evidence, in overruling their motion for a nonsuit upon certain grounds therein stated. It is now well settled that an exception to the refusal of the court to grant a nonsuit will not be considered by this court, where a motion for new trial is made which complains that the verdict is contrary to the evidence. Martin v. Yonce, 163 Ga. 694 (4) (137 S. E. 17).

The court in its charge construed the papers touching the sale of this land by the original plaintiffs to the Massell Realty Compan}», and instructed the jury that these papers constituted a legal and binding contract between the parties for the sale of this property, and for the indorsement of the notes by Ben J. Massell. There are other assignments of error on this charge, which are more fully set out in’ the statement of facts. In view of the rulings hereinbefore made in reference to these papers, we are of the opinion that the court did not err in giving these instructions, for the reasons assigned, or for any other reason.

Errors are assigned upon certain instructions as not supported by 'evidence, there being nothing in the evidence to show that said property was purchased by one in good faith at the sheriff’s sale, or that the purchaser in good faith took it under a sale by the sheriff and entered into possession. There is evidence in the record that Mary E. Ozburn purchased the tract of land, which embraced the tract involved in this case, at sheriff’s sale. It will be presumed that she purchased in good faith, in the absence of any evidence to the contrary; and it will be further presumed that she took possession of the property purchased by her at the sheriff’s sale, possession of land following the legal title.

Judgment affirmed.

All the Justices concur, except Atkinson and Hill, JJ., who dissent.

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Rehearing

ON MOTION EOR REHEARING.

We have withdrawn the original headnote numbered 8, and the corresponding division of the opinion, and have substituted the headnote now appearing 8 and the corresponding division of the opinion. In the original headnote and the corresponding .division of the opinion we dealt with the ground of the motion for new trial therein considered upon the theory that it was imperfect in form. Upon reconsideration we think this was erroneous. We now deal with this ground upon the theory that it was good in form.but bad in substance; and we have reached the same conclusion that we did in the original opinion. This renders it unnecessary to grant a rehearing, and the motion is denied.