100 Ga. 771 | Ga. | 1897
The facts are stated in the official report.
1. To determine the several questions submitted in this case, we will first consider whether the claimant was a competent witness, upon the trial of this case, to testify as to transactions and dealings between himself and the defendant in execution. Under the provisions of our Civil Gode, §5269, all persons are competent and compellable to give evidence on behalf of either or both of the parties to a suit, unless such person fall within some of the exceptions stated in that section of the code. In a claim case the only two substantial parties to the issue joined are the claimant and the plaintiff in execution. The defendant is in no sense a party to the issue pending between these two. Iiis death, therefore, at the time of the trial, disqualifies neither the plaintiff in execution nor the claimant, for though being dead, he is not “the opposite party” within the meaning of that term as it is employed in the section of the code to which reference is hereinabove made. When the claimant was offered as a witness on his own behalf in the present case, even though the defendant in execution was dead, he did not fall within any of the exceptions stated in the section of the code referred to, which would disqualify him arad (readier ¡him incompetent as a witness against the plaintiff in execution upon the trial of the claim case.
2. Complaint is made of the ruling of the judge in admitting, over the objection of the claimant, certain declarations upon the part of the defendant in execution, the claimant not being present at the time such declarations were made. The real question at issue in this case was upon the validity of a deed. The claimant alleged that it was executed to him by the defendant in execution in good faith, and upon a proper and valuable consideration. The
3. The consideration of the deed under which the claimant derived his title from the grantor was expressed to be for love and affection. Upon the trial of the case he ■offered to prove that, in addition to the good consideration ■expressed in the deed, there was likewise a valuable consideration moving the grantor to its execution. This testi
4. As we have said before, the question in this case-turns upon the validity of the conveyance under which the-claimant asserts his right. The validity of that conveyance depends upon whether it was fraudulent. Upon the question of fraud or no fraud in the execution of the conveyance there was a conflict of evidence, and there are circumstances from which inferences may be drawn favorable to both the plaintiff in execution and the claimant. Under this state of the testimony, we think the court erred in directing a verdict subjecting the property to the debt of' the plaintiff in execution.
Judgmmt ■reversed.