155 Ga. 439 | Ga. | 1923
Lead Opinion
(After stating the foregoing facts.)
Error is assigned in the first special ground of the motion for new trial because of the alleged failure of the court to charge the jury certain contentions of the plaintiff. There was no request in writing to charge the contentions set up in this ground. The first contention which it is insisted the court should have charged the jury was that the plaintiff was a bona fide purchaser of the land in controversy for a valuable consideration. It will be seen from the foregoing statement of facts that the consideration expressed in the plaintiff’s deed, upon which he relied for a rer covery, was natural love and affection and the sum of $5. The evidence discloses the fact that he never paid the $5, and, while testifying in his own behalf, he stated that he did not pay anything for the land in controversy and did not know of the existence of the deed to him for a'long number of years after it was made, he being a boy of thirteen years at the time of its execution.
The second contention which it is insisted was omitted from the charge was that a part of the consideration moving from the plaintiff’s father inducing him to make the deed was several months services given by the plaintiff to his father after he had become twenty-one years of age. According to the evidence .as disclosed by the record, these services, if performed, were eight or nine years after the deed was executed; and therefore the court properly failed to state this contention of the plaintiff, if such was the contention at the time of the trial, as the services rendered long after the execution of the deed could not be the basis of a valuable consideration unless there was a contract to that effect, and there is no evidence showing that such was the fact; and as to this contention we are of the opinion that even if there had been a request in writing to charge this contention, the court would have been authorized to so charge. It is true that the plaintiff gave evidence that his father received his services up to the time he was twenty-one years of age, and received them six months after he was twenty-one; but for the time that he was under twenty-one the father would be entitled to his services, and, as stated above, there is no evidence of a contract between the father and the son that after he became twenty-one years of age his services should go as a part of the consideration for the making of the deed.
It is also contended that the court erred in failing to charge the jury that plaintiff contended that the defendant was not a purchaser for value or without notice, that she paid nothing, for the property either in money or services, and that she well knew, before taking the deed under which she claims, that the maker of her deed had already given plaintiff a deed covering the property he sought to convey to her. We are of the opinion that this assignment is without merit. By reference to the charge of the court, which is in the record, it will appear that this contention was covered in his instructions to the jury.
The second special ground of the motion for new trial assigns error on the ruling of the court which permitted the defendant to testify: “ I claim possession of this land in question under a certain deed, and I have had possession of that deed twelve or fifteen years. During that interval of time the deed has been in my possession. I kept it in my room. No one, except me and my husband, had possession of this deed or control of it. Before my father died, a part of the time my husband had this deed in his safe. I also had in my possession this plat, and they both were in my possession all the time.” Error is assigned on the ground that the defendant was incompetent to testify, because her father, under whom she claimed, was dead, and the plaintiff, her brother,
The evidence was objected to as a whole; and even if any portion of it was objectionable and the other was not, the exception to the admissibility of the evidence as a whole is without merit. Blackstock v. Blackman, 152 Ga. 179 (4) (108 S. E. 775); Moore v. Butler, 150 Ga. 154 (2) (103 S. E. 154). And see, in this connection, DeNieff v. Howell, 138 Ga. 249 (4), 251 (75 S. E. 202); Gallagher v. Keiley, 115 Ga. 420 (2) (41 S. E. 613); Horton v. Smith, 115 Ga. 69 (3) (41 S. E. 253).
Error is assigned because the court during the trial erred in permitting the defendant to testify, in answer to a question, as follows: “ Q. On October 28, 1902, the date the deed was made to you by your father, had you ever heard that a deed had .been made to Alonzo Waters to this land, this home place? A. No sir, I did not have any knowledge or suspicion that such a deed had been made to it at that time.” The objection to this evidence is that the defendant is a party to the case, and she is incompetent to testify to a transaction she had with her father, as she- and her brother both claim under deeds from him. Even if the
The fourth special ground of the motion for new trial complains that the court permitted D. B. C. Nunnally, a witness for the defendant, to testify as follows: “ I and George Waters were very close friends, and we had been since our schoolboy days. We went to school together, and were close friends.” The ground of objection is that whether or not the witness and the deceased were friends had nothing to do with the case, and was irrelevant. While we are of the opinion that the evidence standing alone would be irrelevant, yet we are of the opinion that it is not harmful to the plaintiff, but from a consideration of the brief of the evidence it appears that this witness was the scrivener who drew the deed for the grantor conveying the property in controversy to the defendant, and this witness in other portions of his evidence testified to what the grantor said at the time of the execution of the deed as to the consideration being certain services which the defendant was to render to the grantor, and the above evidence tended to explain the conduct of the grantor in expressing himself freely to his schoolboy friend, and threw light on the question as to. why he went to that friend to draw the deed, and as to what the consideration of the deed was. ■
Error is assigned because the court permitted H. A. Boykin, a witness for the defendant, to testify that “ he knew Mr. George W. Waters in his lifetime, and represented him as attorney in drawing his will, and in communicating with him in drawing his will, and during this conversation George W. Waters told said
The court refused to permit the plaintiff: to testify that at the time his father was preparing to make a deed to his daughter (the defendant) he tried to get the plaintiff! to sign the deed to the defendant, or to agree that he convey the lands in question to her; plaintiff! contending that at the time the deed was made by George W. Waters to the defendant, he realized that he could not deed the land to her without the consent of the plaintiff, to whom he had formerly made a deed conveying the same property. We are of the opinion that the court did not err in excluding this evidence. This was a transaction and communication between the plaintiff and his deceased father, under whom the defendant claimed as a grantee, and the plaintiff was incompetent to testify to such fact. Civil Code (1910), § 5858, par. 1; Hendrick v. Daniel, 119 Ga. 358 (46 S. E. 438).
Error is assigned upon the following charge of the court to the jury: “ On the other hand, if you find from the evidence in this case that the defendant took a deed from her father, without actual notice of the existence of a deed made to her brother, before that time, and she took for a valuable consideration — if you find from the evidence that the father sold her this tract of land in consideration of $1000, either to be paid in money or services (I charge you that the contention of the defendant is that it was paid by services in this case); I charge you that if the father made a trade of that kind, and made a deed conveying this property to his daughter, and she performed the services in good faith without actual notice of the existence of the deed to her brother, why then the plaintiff could not recover, although the father- may have delivered the deed to his son, and the defendant would be entitled to a verdict in her favor.” The above charge is not open to the objection that it ignored the contention of the
Error is assigned upon the following charge of the court: “ I charge you, however, that if you find from the evidence in this case that the father made the deed, but that he did not intend to deliver, and did not deliver the deed, although he may have had it recorded, if you should find that to be the truth of the ease, that he did not deliver the deed to the son before he made the 'deed to his daughter, why then the daughter would be entitled to recover in this case, and you should find for the defendant.” The above charge is not subject to the criticism that it ignored the contention of the plaintiff that his deed was not a mere voluntary conveyance but was based upon a valuable consideration, nor that it intimated to the jury that the court was of the opinion that the deed under which plaintiff claimed was a mere voluntary conveyance; nor was the charge open to the objection that the court was of the opinion that the defendant’s deed was for a valuable consideration.
The Civil Code (1910), § 4110, declares that every voluntary deed or conveyance made by any person shall be void as against subsequent bona fide purchasers for value, without notice of such voluntary conveyance. As pointed out in one of the foregoing divisions of the opinion, the evidence of the plaintiff himself showed that he did not pay the $5 valuable consideration expressed in the deed, when or before it was executed. This court has held that to sustain a voluntary conveyance against a subsequent bona fide purchaser for valuable consideration, notice to the purchaser must be actual. Fleming v. Townsend, 6 Ga. 104 (4); Finch v. Woods, 113 Ga. 997 (39 S. E. 418); Martin v. White, 115 Ga. 866 (42 S. E. 279); Culbreath v. Martin, 129 Ga. 280 (58 S. E. 832); Isler v. Griffin, 134 Ga. 192 (5), 197 (67 S. E. 854); Avera v. Southern Mortgage Co., 147 Ga. 24 (92 S. E. 533); King v. Mobley, 150 Ga. 256 (103 S. E. 237).
11. Headnotes not specifically dealt with in the opinion require no elaboration.
Judgment affirmed.
Concurrence Opinion
. concurring specially. Whether the’ witness was competent or not, to testify as set out in the second division of the. opinion, over the objection urged, the admission of the evidence was harmless, as the uncontroverted evidence in the ease shows a delivery of the- deed to the defendant; and even without that, there was a presumption, from the fact of record, of delivery of the deed to the defendant. That presumption will control, unless it is explained or rebutted; and the facts in the record neither tend to explain nor to rebut it.
Concurrence Opinion
concurring specially. We construe the exception to the admission of the evidence set out in the second division of the opinion to refer to the deed to the defendant from her father; and so construing this assignment of error, we are of the opinion that the court erred in permitting the defendant to testify that she had had possession of the deed from her father to her, as this necessarily related to the delivery of'this deed and to a transaction with the deceased grantor; but we are of the opinion that this was a harmless error under the' facts of this case. The deed had been recorded, and was shown by aliunde proof to have been delivered to this daughter. The presumption of delivery of the deed arises from its record. This presumption was not rebutted by proof from which the jury might find that the widow of the grantor, after his death, turned-over to the daughter this deed, there being no explanation of the circumstances' under which the deed was recorded, nor of the circumstances under which the widow got possession of this deed and handed the same to the grantee.
