Hale v. Robertson

Citation100 Ga. 168,27 S.E. 937
PartiesHALE v. ROBERTSON et al.
Decision Date21 January 1897
CourtSupreme Court of Georgia

Execution—Claims of Third Persons—Evidence —Adverse Possession.

1. Where, upon the trial of a claim case, the claimant seeks, as against the execution levied, to show in support of his title four years' adverse possession by himself and those under whom he claims, under a conveyance from the defendant in execution, both a bona fide purchase and entry' by the claimant and his privies and such possession are essential to his protection against the lien of the judgment upon which the execution issued; and upon the trial of the issue touching the bona fides of the purchase and entry of the claimant and his privies it is competent for the immediate vendee of the defendant in execution to testify affirmatively that she bought and entered in good faith, and without any intent to hinder, delay, or defraud creditors of the defendant. Such testimony would amount to the statement of a fact, and would not be the statement of a mere conclusion of the witness.

2. The possession contemplated by the statute does not necessarily involve an actual personal residence upon the premises, but such occupancy by visible signs of dominion as will serve to put persons interested upon notice of the adverse claim.

(Syllabus by the Court.)

Error from superior court, Pulton county; J. H. Lumpkin, Judge.

Action by W. C. Hale against E. A. Robertson & Co. Judgment for defendants, and plaintiff appeals. Reversed.

Hines & Hale, for plaintiff in error.

Simmons & Corrigan, for defendants in error.

SIMMONS, C. J. This was a claim case. There was a verdict finding the property subject, and to the overruling of his motion for a new trial the claimant excepted. The claim was Interposed to the levy of an execution upon an undivided half interest in a certain city lot, and the case turned upon the question whether or not the property levied upon was discharged from the lien of the judgment under that section of the Code which provides that "when any person has bona fide, and for a valuable consideration, purchased real * * * property, and has been in the possession of such real property for four years, * * * the same shall be discharged from the lien of any judgment against the person fromwhom he purchased." Civ. Code, § 5355. There was evidence that the claimant and his privies had been in possession of the land for more than four years, under a purchase from the defendant in execution; and for the purpose of showing the bona fides of the purchase counsel for the claimant, while interrogating as a witness the immediate vendee of the defendant in execution, asked her whether she bought in good faith, or with an intention to hinder, delay, or defraud the vendor's creditors. The court ruled out this question, upon the objection of counsel for the plaintiff in execution that it sought a conclusion of the witness, and not a fact; and this is complained of in the motion for a new trial. We think the court erred in this ruling. Whether a party should be permitted to testify directly as to his motives or intention is a question upon which courts have differed. This court, however, has held such testimony proper. In the case of Royce v. Gazan, 76 Ga. 79, upon the issue whether a sale to the claimant was bona fide, the trial judge permitted counsel for the claimant to ask the latter what his object was in buying the goods, although counsel for the plaintiff objected that the intent or purpose could not be proved in that way, it being a conclusion to be derived from the facts. Error was assigned upon this...

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1 cases
  • Penick v. Morgan County
    • United States
    • Georgia Supreme Court
    • August 19, 1908
    ...there is a question as to the good faith of a party involved in a case, he can testify that he acted in good faith. Hale v. Robertson, 100 Ga. 168, 27 S.E. 937; Acme Brewing Co. v. Cen. R. Co., 115 Ga. 494, S.E. 8. It is likewise true that, when there is involved in a case a question as to ......

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