Burnside v. Terry
| Decision Date | 31 January 1874 |
| Citation | 51 Ga. 186 |
| Parties | James W. Burnside, plaintiff in error. v. Bird Terry et al., defendants in error. |
| Court | Georgia Supreme Court |
Deed. Homestead. Evidence. Attorney and client. Confidential communications. Before Judge Buchanan. Hall Superior Court. June Adjourned Term, 1873.
James W. Burnside brought complaint against Bird Terry, Bowling W. Field and his wife, Levada Field, for lot of land number forty in the tenth district of the county of Hall. The defendants pleaded the general issue, and also that the title to said land was in Field and his wife.
Plaintiff relied on a deed made by Field and his wife, two of the defendants, (the other defendant, Terry, being merely a tenant,) said deed dated April 30, 1869, and an order from Field to Terry, the defendant, dated December 19, 1870, to deliver possession of the land to plaintiff.
Defendants relied on a judgment of the court of ordinary of Lumpkin county, setting apart the land as a homestead. Thehomestead lies part in Lumpkin and part in Hall counties. *There were objections filed as to the appraisement and survey of each, and separate appraisers appointed for each county. On the 24th of April, 1869, the return of the appraisers from both counties being in, the ordinary passed an order directing some three or four lots to be stricken from the plat, so as to bring the valuation within the amount allowed by law, directing the county surveyor to make a resurvey and a new plat accordingly, and that the homestead, as thus altered, be approved. A plat and survey were made in accordance with this order, and were sworn to by the surveyor on the 26th of April. 1869. There is confusion in the record as to the date when this corrected plat was filed and approved. A memorandum, not signed by any one, states that it was approved April 24th. This seems a mistake, as the surveyor did not swear to it until two days afterwards. It was not recorded by the clerk of the superior court until May 12, 1869. The same surveyor, B. F. Sitton, is a witness to the deed under which plaintiff claims, and he swears that the defendants signed the deed at the time he went to lay off the homestead, (after telling him all about the compromise, as expressed in the deed,) and that this was before the homestead was granted.. The consideration expressed in the deed was, that the grantee, Burnside, held judgments which were a lien on all the property of Field and wife, to the amount of $3,000 00; that Burnside made no objections to the homestead, which comprised divers other lots, this one (number forty,) being one of them, upon the following contract and agreement: "That if the said Bowling W. Field does not pay, or cause to be paid fully off said sum of money due on said fi. fas. on or before the 1st day of January, 1871, then the lot or fraction of land number forty in the tenth district of Hall county, Georgia, known as the Field\'s fraction, on the Ches-tatee river, valued at the sum of $1,000 00, is the right and property of the said James W. Burnside, his heirs and assigns forever, in fee simple; and said judgments and fi. fas. are to be held and considered in law and equity fully paid off and satisfiedas to said Field, his heirs and representatives." The other property *in the homestead of realty, when taken with the aforesaid lot, was sufficient to run it up to the full value of $2,000, and the personalty nearly up to the $1,000 00, from all of which the lien of the judgments was to be discharged, under the contract expressed in the deed. The application for homestead did not state that Field was the head of a family, and there were, in fact, no minor children of the applicants, or either of them.
This conveyance of the homestead property was approved by A. Burnside, the ordinary of Lumpkin county and brother of the plaintiff. He was also the officer before whom the petition for homestead had been filed, who had heard all the questions made in it, and at the instance of Field and his wife had approved the survey as finally altered.
On the trial there was conflict in the testimony as to whether Mrs. Field voluntarily signed the deed; but plaintiff offered the written depositions of John A. Wimpy, the attorney for Field and his wife in filing the petition and procuring the homestead set apart in Lumpkin county, to prove, amongst other things, that before the homestead was approved he, as their attorney, and with their assent and authority, made the agreement to settle with Burnside as set out in the deed. This testimony of Wimpy was, on motion of defendants, ruled out as confidential between client and attorney. The record of the homestead from Lumpkin did not show affirmatively that Field was the head of a family, or guardian, or trustee of a family of minor children, and plaintiff objected to its admissibility on this ground. The objection was overruled. The plaintiff made in writing various requests to charge, the substance of which was that the $3,000 00 and upwards of judgment liens being antecedent to 1868, if the parties bona fide settled and compromised those liens by the contract they had made, it was valid and binding, and the action of the ordinary immaterial.
There was no dispute as to the identity of the land, and the whole case turned on the validity of the deed the defendants had made to the plaintiff. The court charged the *jury, in substance, that the plaintiff could not recover unless the deed or paper...
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...in subsequent cases where the knowledge derived from his former client might be used to the prejudice of such client. See Burnside v. Perry, 51 Ga. 186(2); Brown v. Matthews, 79 Ga. 1(3), 4 S.E. 13; Conley v. Arnold, 93 Ga. 823(1), 20 S.E. 762; Stone v. Minter, 111 Ga. 45(1), 36 S.E. 321.' ......
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