Puryear v. Foster

91 Ga. 444 | Ga. | 1893

Bleckley, Chief Justice.

The evidence rejected because of the supposed incompetency of the witnesses Puryear and Jackson, on account of the death of Stancel, appears in the official report. Under the evidence act of 1889, the whole of Puryear’s evidence was admissible. None of it referred to any transaction or communication with Stancel. It related to a transaction with the sheriff, who is still alive, and to the existence and contents of lost documents and destroyed records. The statement that the mortgage referred to was executed by Stan cel meant simply that the mortgage purported to be so executed. As we understand the evidence, the witness did not mean to testify as a fact that it was so executed, or that he knew personally of its execution. He meant to describe and. identify the mortgage to which the judgment of foreclosure mentioned by him related, and give the contents of the mortgage so far as was requisite to the proceeding in hand. The judgment of foreclosure would prove the execution of the mortgage, and that judgment being destroyed, the witness was competent to prove its contents. The scheme of the evidence was for the witness to prove the judgment and the judgment to prove the execution of the mortgage. With respect to the testimony of Jackson, some of it was clearly inadmissible if Jackson had any interest in this proceeding, but some of it was admissible whether he was interested or not. His interest is not clearly apparent, for although Puryear originally bid off the land for Jackson’s firm and that firm withdrew from the purchase and allowed Puryear to take the benefit of it and have the conveyance made to himself, yet, so far as appears, the firm made no warranty in this transaction with Puryear; and whether he fails or succeeds in this application for a deed from the sheriff, no liability upon Jackson or his firm will necessarily arise or be discharged. Even if we should be mistaken in this, Jackson was certainly competent to prove the foreclosure of the mortgage, the levy of the execution, and the sale of the land under it. It strikes us that Jackson’s interest may not be clear enough to exclude him as to any of his proposed evidence, but, of course, this question can be cleared up hereafter. What we adjudge at present is this: the court erred in holding Jackson and Puryear incompetent to testify as to some of the facts ruled out, they being competent- to testify to all the enumerated facts, except that the mortgage was in fact made by Stancel and the further fact that Stancel applied for and obtained leave to cut trees on the land. Of course, what Stancel said to Jackson and ■Jackson to him would be included in this exception.

Judgment reversed.