Kramer v. Spradlin

• Decision Date: 14 February 1919
• Docket Number: 965.
• Parties: KRAMER v. SPRADLIN ET AL.
• Court: Georgia Supreme Court

98 S.E. 487

148 Ga. 805

KRAMER v. SPRADLIN ET AL.

No. 965.

Supreme Court of Georgia

February 14, 1919

Syllabus by the Court.

Where a testator bequeathed and devised to his widow a promissory note payable to him, and all his interest in a deed to certain realty, executed by the maker of the note to secure its payment, and in his will expressly authorized his widow to sue on the note if it should not be paid, and to reconvey the land to the grantor in the deed (as provided by statute) in order to have the land sold under a judgment on the note as the property of the defendant, and the executor expressly consented to the legacy and devise, the widow was the assignee or transferee of the title of the testator to the note, and of his interest and rights under the deed; and where an execution issued upon a judgment on the note obtained by the widow against the maker was levied upon the land conveyed in the security deed, and a statutory claim to a part of the land was interposed, the maker of the note and security deed was an incompetent witness to testify, on the trial of the issue in the claim case, to transactions and communications between himself and the testator, relative to the note and the deed, and tending to the direct benefit of the witness and to the injury of the plaintiff in fi. fa. The decision in Austin v. Collier, 112 Ga. 247, 37 S.E 434, in so far as it conflicts with what is here ruled, is upon review, overruled.

Certain testimony objected to was not inadmissible on the sole ground that the witness was incompetent because of the death of the testator of the plaintiff.

Error from Superior Court, Heard County; J. R. Terrell, Judge.

Suit by Ruth Kramer against one Vaughn. Judgment for plaintiff, and execution issued against Vaughn, upon which J. W. Spradlin Sr., interposed a statutory claim to a specified part of the land. From a directed verdict finding the land claimed not subject to execution, plaintiff excepts, and brings error. Reversed.

C. E Roop and S. Holderness, both of Carrollton, for plaintiff in error.

Hall & Jones, of Newnan, and Willis Smith and J. L. Smith, both of Carrollton, for defendants in error.

FISH C.J.

Kramer made a loan of money to Vaughn, and took from him a promissory note therefor, payable to Kramer, and a deed to described land to secure the debt. Kramer died, leaving a will whereby he gave to his widow the note and all of his interest in the land conveyed as security for its payment. The will specifically stated the transaction between the testator and Vaughn, and authorized the widow to sue on the note in the event of its nonpayment, and to reconvey the land to Vaughn for the purpose of its sale under the judgment obtained upon the note, according to the statute in such cases (Civ. Code, § 6037). The executor expressly consented in writing to the legacy, both as to the note and the security deed. The note was not paid, and the widow brought suit thereon against Vaughn, and obtained a judgment. She reconveyed the land to Vaughn by a quitclaim deed, which was duly and properly filed and recorded; and afterward the execution issued upon the judgment was levied upon the land as Vaughn's property. Spradlin interposed a statutory claim to a specified part of the land; and on the trial of the issue made in the claim case the court permitted Vaughn to testify that, subsequently to the execution of the security deed to Kramer, Vaughn, for a valuable consideration, sold and conveyed to Spradlin by a warranty deed the portion of the land claimed, and that the sale and conveyance were made with the actual knowledge and expressed consent of Kramer, who really advised Vaughn and Spradlin to make the trade, and aided them in carrying it out in the execution of the conveyance. This testimony was objected to by the plaintiff in execution, on the ground that, as to the title to Vaughn's note and to the testator's interest in the security deed, the plaintiff was the assignee and transferee of her deceased husband, Kramer, who in his will gave and bequeathed to her Vaughn's note and all of the testator's interest in the land held by him at the time of his death under the deed executed to him by Vaughn to secure the payment of the note, and that Vaughn was directly interested in the result of the case, for the reason that he had conveyed to the claimant a part of the land by a warranty deed, and if it should be found subject to the plaintiff's execution, Vaughn would then be liable on his warranty to the claimant. A verdict was directed finding the land claimed not subject to the execution, and the plaintiff excepted.

1. Our statute (Park's Ann. Civ. Code, § 5858) declares:

"1. Where any suit is instituted or defended by a person insane at time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person, as to transactions or communications with such insane or deceased person, whether such transactions or communications were had by such insane or deceased person with the party testifying or with any other person."

And:

"4. Where a person not a party, but a person interested in the result of the suit, is offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any cause be incompetent."

The controlling question in the case is whether Mrs. Kramer, the plaintiff in execution, who is the legatee and devisee, under the will of her husband, of Vaughn's promissory note, and of all the interest of the testator in the deed given to secure the note, which the testator held at the time of his death, is the assignee and transferee as to such property within the meaning of the evidence act above quoted, so as to exclude the testimony of Vaughn, who is interested in the result of the suit, as to transactions and communications he had with the testator.

In Hendrick v. Daniel, 119 Ga. 358, 46 S.E. 438, it was held:

"Under Civil Code, § 5269 [C. C. 1910, § 5858] 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."

We quote liberally from the able opinion rendered by Mr. Justice Candler in that case. He said:

"The literal meaning of the word 'indorsee' is easily ascertained by reference to its etymology. Indorsement applies to such written entries as may be made on the back of notes, checks, etc., and may transfer title to the paper on which it is made. The literal meaning of the word 'assignment' is much broader. In its most general sense it applies to the transfer of interest in all classes of property, real, personal, or mixed. Bouvier gives as the definition of the verb 'assign' to make or set over to another, and of 'assignment' a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein; a transfer by writing, as distinguished from one by delivery. Black's Law Dictionary (page 97) defines the word as 'the act by which one person transfers to another, or causes to vest in that other, the whole of the right, interest, or property which he has in any realty or personalty, in possession or in action, or any share interest, or subsidiary estate therein; * * * in a narrower sense, the transfer or making over of the estate, right, or title which one has in lands and tenements.' The same authority defines the verb 'assign,' as used in conveyancing, as follows: 'To make or set over to another; to transfer; as to assign property, or some interest therein.' It

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