Davis v. Mclester

• Decision Date: 28 February 1880
• Citation: 65 Ga. 133
• Parties: Davis, administrator, et al. v. McLester.
• Court: Georgia Supreme Court

65 Ga. 133

Davis, administrator, et al. v. McLester.

Supreme Court of the State of Georgia

(February Term, 1880.)

Witness. Evidence. Verdict. Before Judge Crawford. Stewart Superior Court. October Term, 1879. Reported in the decision.

J. F. Pou; Peabody & Brannon, for plaintiffs in error.

W. A. Little, for defendant.

WARNER, Chief Justice.

This was a bill filed by the complainant against the defendants praying for the reformation of a deed conveying certain described property, made by Shipp to McLester, the husband of complainant, on the allegations contained *in said bill. On the trial of the case, the jury found a verdict in favor of the complainant. A motion for a new trial was made on the grounds therein stated, which was overruled, and the defendants excepted.

It appears from the evidence in the record that Battle, who was the father of the complainant, paid the money to Shipp for the property mentioned in the deed, and as the complainant alleges, with instructions to have the deed made to McLester, her husband, as trustee for her use and benefit, whereas the deed was made to McLester absolutely, contrary to the instructions of her father, who paid the money. There was no dispute as to the fact that complainant's father paid the money for the property, but the controverted question in the case was whether the deed, according to the instructions of the complainant's father, was to have been made to McLester in trust for the use and benefit of his wife, or whether it was to have been made to McLester just as it was made, without any trust for his wife.

1. One of the grounds of error complained of in the motion was in admitting in evidence the following testimony of Thomas W. Battle, over defendant\'s objections, McLester being dead, to-wit: "I then requested McLester to see if Shipp would sell his interest in the land and personal property and let me know, and if he would do so on fair terms, I would buy it for the use and benefit of his wife, my daughter, and make his wife equal to him, and he could then run the whole place for their mutual benefit. I instructed him (McLester) to take the deed in his name as trustee for the use and benefit of his wife. I did intend it to be a gift to my daughter, and thought that it was all arranged according to my wishes." The original parties to the contract in issue on trial, as made by the record in this case, were the complainant and Shipp, McLester being only the agent of Battle to make the contract with Shipp...