Hendrick v. Daniel

• Decision Date: 13 January 1904
• Citation: 46 S.E. 438,119 Ga. 358
• Parties: HENDRICK et al. v. DANIEL.
• Court: Georgia Supreme Court

46 S.E. 438

119 Ga. 358

HENDRICK et al. v. DANIEL.

Supreme Court of Georgia

January 13, 1904

Syllabus by the Court.

1. Under Civ. Code, § 5269, par. 1, in an action of ejectment the opposite party to the grantee of a deed from a deceased person is not competent to testify in his own behalf to conversations and transactions with such deceased person affecting adversely the title conveyed by the deed; and under paragraph 5 the agent of such a party is likewise incompetent.

2. It is not error to exclude evidence as to matters about which there is no dispute.

3. This court will not consider a ground of a motion for a new trial complaining of the refusal of the court to allow counsel to ask a witness a stated question, where it does not appear what answer to the question was expected.

4. The evidence amply sustained the verdict.

Error from Superior Court, Heard County; S.W. Harris, Judge.

Action by John W. Daniel against Hugh L. Hendrick and others. Judgment for plaintiff. Defendants bring error. Affirmed.

D. B Whitaker, R. W. Freeman, and W. C. Wright, for plaintiffs in error.

S. Holderness and Frank S. Loftin, for defendant in error.

CANDLER J.

Suit was brought by John W. Daniel against Hugh L. Hendrick to recover certain lands described in the petition. Daniel claimed under two deeds from Jeptha H. Daniel, Sr., dated, respectively, January 1, 1898, and April 23, 1898, conveying the land in dispute. At the return term the defendant answered that he was in possession of the land only as agent for his wife, Helen Hendrick, and at that term she was made a party defendant. In their plea they admitted Mrs. Hendrick's possession, and denied the plaintiff's title, or that he had any right to the possession or the rents and profits of the land. They further averred that in the fall of 1889 Jeptha H. Daniel, the grantor in the deeds to the plaintiff, who was the father of both the plaintiff and Mrs. Hendrick, put Mrs. Hendrick in possession of the land, and expressed the desire that she should have it as a gift or advancement from him; that after this declaration, with the express understanding that the lands were a gift from Jeptha H. Daniel to his daughter Mrs. Hendrick, she, by and through her husband, Hugh L. Hendrick, went into possession, and has so remained ever since; and that her possession has been continuous and exclusive for a space of more than seven years in the lifetime of Jeptha H. Daniel, without the payment of any rent for the land, the seven years having elapsed before the making of the alleged deeds from Jeptha H. Daniel to the plaintiff. It was therefore claimed that Mrs. Hendrick was seised of the land in fee before the making of the deeds set out in the plaintiff's abstract of title. The plea also set up that, after going into possession of the land under this parol gift, Mrs. Hendrick, acting through her husband as her agent, made substantial and valuable improvements on the property, which were enumerated. At the trial, evidence was introduced on both sides. The jury returned a verdict for the plaintiff for the premises sued for, and mesne profits. The defendants made a motion for a new trial, which was overruled, and they excepted.

1. While the motion for a new trial, as amended, contains numerous grounds, the case is really controlled by a single question, viz., whether the court below erred in excluding testimony as to transactions and communications between Mrs Hendrick and her husband and agent, on the one side, and Jeptha H. Daniel, under whom both the plaintiff and Mrs. Hendrick claimed, and who had died prior to the bringing of the suit, on the other. This evidence was excluded as coming within the prohibitions, respectively, of Civ. Code, § 5269, pars. 1, 5, the court holding, in effect, that John W. Daniel, the plaintiff, was an assignee or transferee of his deceased father, and therefore Mrs. Hendrick could not testify in her own favor against his title, and that her husband, who was admitted to have been her agent in all the transactions relating to the land, was likewise, by reason of his agency, incompetent to testify as to such transactions. The question squarely presented, therefore, is, where suit is instituted to recover possession of land by a grantee in a warranty deed, can the opposite party or his agent testify to conversations or transactions with the deceased grantor, the nature of which is to show an adverse title? This, in turn, renders necessary a discussion as to whether a grantee of land is included in the words "assignee" or "transferee," as used in the Code section to which reference has been made. This court is thoroughly committed to the proposition that the act of 1889, and the subsequent acts amendatory thereof, the provisions of which have been embodied in Civ. Code, § 5269, are to be literally construed, and that nothing will be added to or taken from them by judicial construction. The original act (Acts 1889, p. 85, No. 486) provided only for cases "where any suit is instituted or defended by a person insane at the time of trial, or by the personal representative of a deceased person." In the case of Woodson v. Jones, 92 Ga. 662, 19 S.E. 60, which was decided November 6, 1893, this court held that under the act of 1889 "the maker of a negotiable promissory note is a competent witness in his own favor to prove payment thereof to the payee before the note was transferred, although the payee has since died; the action being by the indorsee of the note, and the personal representative of the payee not being a party thereto on either side." In the opinion the present Chief Justice, referring to former decisions to the effect that the terms of the act of 1889 would not be extended by...