Anderson v. Brown
| Decision Date | 08 April 1884 |
| Citation | 72 Ga. 713 |
| Parties | ANDERSON, administrator, v. BROWN. |
| Court | Georgia Supreme Court |
February Term, 1884.
[Hall Justice, being disqualified, Judge Clarke, of the Pataula circuit, was designated to preside in his stead.]
1. The verdict is sustained by the evidence.
2. The title to property set aside to a bankrupt as an exemption is absolutely in him, and there is no law prohibiting him from alienating or encumbering such exempted property, though done before his final discharge.
( a. ) Where articles of agreement set forth mutual covenants, they constituted a valuable consideration from each party to the other. In this case the articles contemporaneous with the note, deed and bond for titles constitute with them one contract. They must all be construed together, and the consideration of the main transaction runs through all the branches.
( b. ) The true best of testamentary character in a writing is, whether its effect appears to be deferred till the death of the maker and appointed to take place in that event.
3. While parol testimony is inadmissible to alter the terms and conditions of a written contract, it is admissible to show the circumstances under which a note was made, to explain the consideration and show that it was not, in fact, based on the consideration which appeared upon its face, but what its true consideration was.
4. In a contest between an administrator and another concerning certain lands, tax returns made by the intestate of the administrator, in which he returned the lands as the property of the other party, were admissible in evidence as admissions against his title.
5. A policy of insurance issued to the intestate, insuring the improvements on the land as his property, was properly rejected from evidence. The policy was the statement of the company, not of the insured, and it was irrelevant as a contradiction of the admissions of the intestate, because he still had an insurable interest in the property.
6. Under a bill by an administrator to recover certain land conveyed by his intestate, the existence of judgments and claims against the estate and the insolvency of the decedent being admitted, it was irrelevant to go into a full exhibition of the liabilities of the estate.
( a. ) A grantor cannot plead against his conveyance to his grantee and the possession of the latter his own fraud, nor can an administrator plead his intestate's fraud for that purpose.
7. One ground on which it was sought to set aside certain articles of agreement being the imbecility and incapacity of a party thereto, and his administrator, who brought the action alter his death, having testified at length to establish that the decedant had always been a man greatly deficient in business sense and force, and that for many years prior to his trade with defendant he had been incompetent to make trades, it was admissible to show, on cross-examination, that the witness himself had traded with the decedent in regard to interests amounting to $10,000.00, although it was five years prior to the making of the contract in controversy. In such cases the inquiry is not usually confined to precise and narrow limits of time.
8. Where a witness has been examined by interrogatories, a party may withdraw his cross-interrogatories and then object to the use of answers thereto by the other side, if they are objectionable, as coming from the offering side, provided that such withdrawal is made before the interrogatories are read to the jury; but upon an oral examination, a party asking a cross question and eliciting an unfavorable reply which the other side could not have introduced, cannot have the legitimate answer to his own question ruled out; and the same principle applies to cross-interrogatories and answers after they have been read to the jury.
Bankruptcy. Debtor and Creditor. Insolvency. Contracts. Evidence. Deeds. Wills. Admissions. Administrators and Executors. Estoppel. Fraud. Practice in Supreme Court. Practice in Superior Court. Before Judge SIMMONS. Houston Superior Court. October Term 1883.
Reported in the decision.
A. A DOZIER; R. N. HOLTZCLAW; H. M. HOLTZCLAW, for plaintiff in error.
B. M. DAVIS; W. S. WALLACE, for defendant.
CLARKE JUDGE.
On May 29, 1877, the following transaction occurred between the intestate of plaintiff in error and the defendant in error.
On the back of the note was at the same time entered:
The note was then delivered to John G. Brown from whom it was, at the trial, obtained by subpœ na duces tecum. Joseph died in April, 1880, and Mrs. Tooke about four months after. In March, 1881, plaintiff in error qualified as administrator In September following, he filed his bill against Glenmore T. Brown, making the following charges, to-wit: That said deed, bond for titles and Tooke's note were made as aforesaid; that Brown rented the land for 1880 from Tooke, giving therefor his note above copied, on an agreement that the amount of such rent should be credited on Tooke's said debt to Brown; that Brown, without express contract, had held possession of the lands for 1881, and owed a like amount for rent of that year also; that he was indebted to the estate for certain personalty on the place at Tooke's death, and appropriated by Brown, making up more than enough to settle up Tooke's note. The bill prays for an accounting, and that the defendant may be required to execute to complainant, as administrator a reconveyance according to the terms of the said bond.
Defendant answered, setting up said articles of agreement, and compliance with his covenant therein. He denies that he took possession of said lands as Tooke's tenant, under a contract for rent, but charges that said Tooke induced him to take immediate possession of the land as his own, under the deed, and in consideration therefor to make provision for the support of Tooke and wife during life; that Tooke, being old and infirm and unable to carry on the farm, did, for his own comfort and that of his wife, urge upon defendant this arrangement. He alleges that his note, purporting to have been given for rent, was really given to enable Tooke, by its transfer, to raise a sum in cash to meet certain emergencies of bad health, for medical attention, etc., and was, as soon as executed, transferred to John G. Brown, who advanced the needed money on it for such purposes. He says that he not only forebore to press his claim during the life-time of Mrs. Tooke and of Joseph Tooke, but that they lived on it under his care, and that he, by Tooke's request, and supported them from the time he took possession as long as they lived. He admits receiving some of the personalty, but alleges cash payment therefor. He denies that anything has ever been paid on Tooke's note, and that respondent owes anything to the estate for rent. He claims that since the death of Mrs. Tooke, he had held the lands as his own absolute property under said deed, articles of agreement and compliance aforesaid, by virtue whereof he insists that the title did, at her death, become absolute in him.
By amendment, the complainant charged that said articles of agreement were void, on various grounds hereinafter particularly set forth, and also because of the mental imbecility or incapacity of his intestate. All these issues of fact were submitted to the jury, a verdict was rendered for the defendant, a motion for new trial was made and overruled, and the refusal of said motion is assigned as error.
1. The first and second grounds of the motion for a new trial are an impeachment of the finding of the jury, as " contrary to the evidence and the principles of justice and equity," and as " decidedly and strongly against the weight of evidence." There certainly was enough evidence in favor of the finding to sustain the verdict.
2, 3. Complainant objected to the said articles of agreement as evidence, on the following grounds:
(1.) Because these lands had been set aside...
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...by the company, was clearly a nullity. Hence, a determination as to what was the true consideration, if any, must be made. Anderson v. Brown, 72 Ga. 713(3). Upon inquiry into what was the actual consideration, we find from the evidence: that the insured was allowed no reduction in premium; ......
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