Campbell v. Sims
| Decision Date | 13 January 1926 |
| Docket Number | 4943. |
| Citation | 131 S.E. 483,161 Ga. 517 |
| Parties | CAMPBELL v. SIMS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under the pleadings and the evidence, the following charge was not error: "That means, the burden is on Sims to show that he has title to this piece of land; and that really is the only important essential you are to determine, whether or not the title is in Sims, or whether it belongs to Maggie Campbell, or whether it belongs to Sims, and he has established his title to the land." There is no evidence which would have authorized the court to charge that the deed given by the common grantor to the plaintiff was to secure a debt.
Under the facts, the following charge was not error: "In this deed from Maria McDonald to Maggie Campbell, you will find certain language, 'My granddaughter has taken care of me in my old age,' and all this language, in the way of explanation, I withdraw from your consideration." Recitals of fact in a deed are not evidence of the truth of such recitals, as against one who was not a party to the instrument.
It was error for the court to allow counsel for plaintiff to ask plaintiff the following question on direct examination "Did you ever have a deed to this property?" and to permit the plaintiff to answer, "Yes, sir," under the facts, and over the objections set out in the third division of the opinion.
The court erred in allowing the plaintiff to testify as follows --under the facts, and over the objections of defendant, set out in the fourth division of the opinion.
It was not error to allow a witness for the plaintiff to testify upon direct examination, over objection, that "I saw Sims and asked him would he buy it; I wanted to see Sims about this property; I told Sims that she wanted to get rid of this property." This evidence was not inadmissible on the ground that it was incompetent, irrelevant, and hearsay.
(a) The proof of the execution and delivery of a deed is not confined to the subscribing witnesses.
(b) The existence and genuineness of a deed may be proved by circumstantial evidence.
Counsel for plaintiff asked a witness for the plaintiff the following question: "Did Sims and Maria make a trade?" and the witness answered: "She told me she did." The above question was not leading, nor was it objectionable on the ground that the witness would have to "connect up" with the particular deed which the plaintiff claimed under from the common grantor. A certified copy of this particular deed was subsequently introduced.
It was not error on the trial of the case to refuse to allow counsel for the defendant to question, and the defendant to answer, as to a conversation between her and the common grantor at the time the common grantor was alleged to be trying to get the deed she made to the plaintiff from him.
It was not error, under the facts of the case, to receive in evidence, over objection of the defendant, the certified copy of the deed from the common grantor to the plaintiff.
Additional Syllabus by Editorial Staff.
Where an affidavit of forgery of a deed is filed, burden is on plaintiff to prove its execution before a certified copy is admissible.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Suit by F. R. Sims against Maggie Campbell. Judgment for plaintiff, and defendant brings error. Reversed.
R. D. Feagin, of Macon, for plaintiff in error.
Martin, Martin & Lamar, of Macon, for defendant in error.
F. R. Sims filed an equitable petition against Maggie Campbell, to recover a house and lot in the city of Macon, which is described in the petition. The plaintiff prayed for a receiver, and that a deed from the common grantor, Maria McDonald, to Maggie Campbell, the defendant, be canceled. It was alleged in the petition that the deed of Maggie Campbell was subsequent in date to plaintiff's deed, and therefore that Maggie Campbell had no title to the property. The defendant denied the material allegations of the petition. She specifically denied that the plaintiff held any deed from Maria McDonald, the common grantor. She alleged that, if the plaintiff held a paper purporting to be a deed from Maria McDonald, the same was a forgery. On the trial, the defendant filed also an affidavit of forgery, which issue was submitted to the jury along with the main case, but no special verdict was found on the issue of forgery. The defendant also averred in her answer, that, if the plaintiff held a deed, as alleged by him, from Maria McDonald, it was not intended to be a warranty deed, conveying the fee-simple title to the property in controversy, but that it was intended to be only a deed to secure a debt which was paid by Sims for Maria McDonald for taxes due on the property in controversy. On the interlocutory hearing, the court denied the application for a receiver. On the trial of the case, the plaintiff filed an amendment striking that portion of his petition praying for mesne profits. The jury returned a verdict for the plaintiff, and a decree was entered in pursuance thereof, canceling and declaring void the deed from Maria McDonald to Maggie Campbell, and declaring the title to the property in controversy to be in Sims. Maggie Campbell filed her motion for new trial on the usual general grounds, and subsequently added sixteen special grounds. The motion was overruled, and Maggie Campbell excepted.
1. Grounds 1, 2, 5, 6, and 8 involve the same principle of law, and will be considered together. The court charged the jury as follows:
"That means, the burden is on Sims to show that he has title to this piece of land; and that really is the only important essential you are to determine, whether or not the title is in Sims, or whether it belongs to Maggie Campbell, or whether it belongs to Sims, and he has established his title to the land."
It is argued that this charge is error, because it does not state correctly to the jury the only important essential which should have been determined under the pleadings and evidence in the case, inasmuch as the answer of the defendant expressly averred that, if the plaintiff held a deed as alleged in his petition, the same was not intended to be a warranty deed conveying the fee-simple title to the property, but was only intended as a deed to secure a debt; and that it was error for the court, by the charge excepted to, to exclude this feature of the case from the jury's consideration. We are of the opinion that the charge as given stated a correct principle of law, and, from a review of the evidence, we find that there is no evidence which would have authorized the court to charge that the deed given by Maria McDonald to Sims was to secure a debt.
2. Error is assigned upon the following charge of the court:
"In this deed from Maria McDonald to Maggie Campbell you will find certain language, 'My granddaughter has taken care of me in my old age,' and all this language, in the way of explanation, I withdraw from your consideration."
Exception is taken also to the ruling out of the following recitals in the deed, and refusing to let it go to the jury for their consideration:
It is insisted that this evidence was material, and was a declaration against the interest of the one in possession admitting a certain indebtedness to Sims, who claims title, and that it was sufficient evidence on which to base the defendant's answer that the deed to Sims, if executed, was merely a deed to secure debt, and that it is explanatory of the consideration for the deed, etc. We are of the opinion that the court neither erred in ruling out the evidence nor in giving the charge excepted to. The recital in the deed is no evidence of the fact recited, except as against the parties to the deed and their...
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