Dorminy v. Russell
| Decision Date | 01 July 1936 |
| Docket Number | 11107. |
| Citation | 186 S.E. 679,182 Ga. 635 |
| Parties | DORMINY v. RUSSELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the equitable amendment filed by the claimant in aid of her claim to the land levied on, she sought to set up ownership of the land under an implied trust, upon the allegation that, while the written title was placed in her husband, all of the purchase money was furnished by her. In view of the fact that all the muniments of title had for many years been recorded in the name of the husband, the rights of the plaintiff in fi. fa. could not be affected by the secret equity of the wife unless he knew, or unless there had been brought to his notice sufficient circumstances to put him on inquiry, that the realty was burdened by an implied trust. The court having correctly excluded certain testimony hereinafter referred to, the case turns on and is controlled by the issue whether the lender (the plaintiff in fi. fa.) knew or should have known of the wife's secret equity and, consequently, the real question is whether the court erred in excluding the testimony of the witness Dorminy to the effect that he told the plaintiff in fi. fa., before the execution of the loan deed, that the property about to be encumbered was not his property, but was the property of his wife.
2. When the competency of a witness is dependent on the determination of questions of fact, the decision of the judge will not be disturbed if there is any evidence to authorize his finding. In this case the evidence fully authorized the conclusion that the testimony which was excluded was incompetent because of the interest and the agency of the witness whose testimony was sought to be adduced.
3. Schedules in bankruptcy, sworn to by a witness, were admissible in evidence to discredit his testimony on the trial.
4. The court did not err in directing the verdict, nor in overruling the motion for new trial.
Error from Superior Court, Ben Hill County; M. D. Dickerson, Judge.
Action by E. A. Russell against A. B. C. Dorminy, wherein the plaintiff obtained a judgment and J. B. Russell, as executor of the will of E. A. Russell, procured a levy of execution and Mrs. A. B. C. Dorminy filed a claim to the property on which execution was levied. Judgment for plaintiff, and the claimant brings error.
Affirmed.
McDonald & McDonald, of Fitzgerald, for plaintiff in error.
Jay & Garden, of Fitzgerald, for defendant in error.
Between the years 1910 and 1918, A. B. C. Dorminy acquired title to several tracts of land in Ben Hill county; the deeds into him being duly recorded. In 1922 he procured a loan of $4,000 from E. A. Russell, executing to him as evidence thereof a promissory note secured by a security deed to the land referred to. In 1925, Russell obtained a judgment against Dorminy on the note, with a special lien on the land described in the security deed. Thereafter, E. A. Russell died. The execution based on the judgment procured in 1925 was levied on the land given as security for the debt, after J. B. Russell as executor of the will of E. A. Russell had executed a deed of reconveyance for the purpose of levy and sale. To the land thus levied on, Mrs. A. B. C. Dorminey filed a statutory claim, and an equitable amendment thereto, asserting that the property had been purchased with money furnished by her to her husband out of her separate estate, that title thereto was taken in his name without her knowledge, that he held title thereto as her trustee, and that these facts were known to E. A. Russell at the time he made the loan. On the trial the judge directed a verdict in favor of the plaintiff in fi. fa. A motion for new trial was overruled, and the claimant excepted.
The first eight grounds of the motion for new trial assign error on the admission of certain security deeds executed by the defendant in fi. fa. to various grantees, conveying the land involved in this proceeding, or part thereof. The objection was that said deeds were made by A. B. C. Dorminy, "and unless it is shown by the authority of the claimant in this case, it is irrelevant and immaterial, and does not illustrate any issue in the case, and would not be binding upon her."
Ground 9 assigns error on the ruling refusing to allow in evidence testimony of A. B. C. Dorminy that the claimant asked him to buy for her certain of the property involved. Grounds 10 and 11 complain of the rulings excluding from evidence testimony of A. B. C. Dorminy that he did not ever notify his wife that he had taken the deed in his name. Ground 12 complains of a ruling refusing to allow A. B. C. Dorminy to answer the following question: "Did you tell her that you borrowed some money on this place from Dr. Russell?" Movant avers that if the witness had been permitted, he would have answered the question, "I did not." Ground 13 complains that the court erred in refusing to allow A. B. C. Dorminy to testify: "Shortly prior to the time that Dr. E. A. Russell made the loan to A. B. C. Dorminy I informed Dr. E. A. Russell, plaintiff in fi. fa., who is now deceased, that the property in question was the property of my wife, and that she paid for it; that Dr. Russell asked me about buying part of the property, and I told him I couldn't sell it, that it belonged to my wife; all of which took place before the deed to secure debt was executed by A. B. C. Dorminy to E. A. Russell." Ground 14 complains of the admission in evidence of the bankruptcy schedules of A. B. C. Dorminy, over the objection that they were irrelevant and immaterial and were pleadings of A. B. C. Dorminy and not of Mrs. Dorminy, and it was not shown that she authorized or had any knowledge thereof. Ground 15 complains of the direction of a verdict in favor of the plaintiff, asserting that under the evidence and the pleadings there were issues of fact which should have been submitted to the jury; and that the evidence did not demand a verdict in favor of the plaintiff, but there was evidence which would have authorized the jury to find in favor of the claimant.
1. Council for both parties concede that the question presented in ground 13 of the motion for new trial is the crux of the case, and the decision upon this point is controlling regardless of the questions raised by the preceding grounds. In solving the question, the exceptions to Code 1933, § 38-1603, must be properly construed. Among them are the following: (4) "Where a person not a party, but a person interested in the result of the...
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