Lamar v. Pearre

Decision Date27 August 1892
Citation17 S.E. 92,90 Ga. 377
PartiesLAMAR et al. v. PEARRE. PEARRE v. LAMAR et al.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. Under the system of pleading prevailing in this state, the positive and unqualified charges of material facts contained in a bill in equity praying for relief and waiving discovery though the bill be signed by counsel only, and not sworn to by the complainants, are not mere suggestions of counsel, but are imputable to the complainants, as declarations made by them, and in other suits to which they are parties may be given in evidence as their admissions.

2. A certificate of the clerk of the superior court, stating two cases by name, and adding "that the above-stated cases have been duly dismissed, as appears from the dockets of said court," is not admissible in evidence to show that the cases were in fact dismissed.

3. A witness testifying that she was so young at the time that she did not know from whom certain property was bought, or where the money came from to pay for it, but saying she knows now that the money came from a specific fund, shows by her own testimony that what she calls her "present knowledge" is not her own personal knowledge of the fact, but a state of mind produced by hearsay, or something else by which she has been enlightened since the fact occurred; nothing appearing to explain how, or by what means her so-called knowledge was produced, or from what source it was derived.

4. A trustee for a life estate only, having sold and conveyed the fee, and the remainder-men having, after the death of the tenant for life, brought suit against the purchaser to assert their title in remainder and to recover the premises, the mere fact that pending this suit they filed a bill against a purchaser from the tenant for life, in which they claimed other property as being the proceeds of sale by the trustees of some or all of the original trust property, would not defeat the action, although the property sought to be reached as proceeds was such, in fact, and the complainants had full knowledge of the fact at the time of filing the bill.

5. If the trustee of the life estate sold the fee, and received the purchase money for the whole, and if he afterwards invested some of that purchase money in other lands, and the remainder-men, after the death of the life tenant appropriated these other lands to their own use, with knowledge of all the material facts, their so doing was a ratification of the sale and conveyance of their estate in remainder by the trustee, and they would be estopped from recovering from the purchaser their remainder interest. If they did not have knowledge of the facts, they would, upon proper equitable pleadings, be liable to account in the present action for so much of the value of the lands received by them as would equal the proceeds of their remainder in the original trust property, which were invested in these lands, with interest thereon. To the ratification here spoken of, the terms of sections 2192 and 2194 of the Code would apply.

6. Under the rule that the declarations of a person since deceased, against his interest, and not made with a view to pending litigation, are competent evidence, declarations made by one in possession of lands, and holding them as apparent owner, to the effect that they were purchased with proceeds of the sale of certain premises, and that they were trust property standing in lieu of these premises, the declarant being now dead, are admissible in evidence against the remainder-men under the original trust referred to, in favor of a purchaser of the original trust lands; these being the premises now in dispute, and the declarant having been a tenant for life in these premises under the same trust in which the title in remainder now sought to be enforced had its origin. Declarations by a tenant for life in possession of the proceeds of a trust fund, by which declarations she virtually admits that her estate in these proceeds is limited to her own life, are against her interest; for the reason that, presumptively, a person in possession of property apparently as owner is such owner, not for life only, but in fee. Collateral facts relevant to the principal fact, and embraced with it in a declaration made against interest, may, as well as the principal fact itself, be proved by the declaration.

Error from superior court, Columbia county; H. C. Roney, Judge.

Ejectment by H. G. Lamar and others against B. E. Pearre. Defendant had judgment, and, on a judgment denying a motion for a new trial, both parties bring error. Reversed.

For former report, see 9 S.E. 1043.

W. M. & M. P. Reese, for plaintiffs.

McNeill & Levy, M. H. Blandford, and P. B. Johnson, for defendant.

LUMPKIN J.

A second trial of this case, in pursuance of the decision of this court in 82 Ga. 354, 9 S.E. 1043; resulted in a verdict for the defendant; and, to a judgment overruling plaintiffs' motion for a new trial, they excepted, on several grounds.

1. The court admitted in evidence an exemplified copy of a bill filed by the present plaintiffs and others in Bibb superior court against C. T. Ward, seeking to recover certain land which they claimed had been purchased with proceeds of the sale of some of the property included in the trust, which trust covered the property now in dispute. The bill was not signed or sworn to by the complainants therein, but bore only the signature of their solicitor. The relevancy of the evidence is not questioned, but it is alleged that its admission was error because it contained merely the "suggestions of counsel." Prof. Greenleaf, in his excellent treatise on Evidence, (volume 3, § 274,) advises us that "ordinarily the bill is drawn by the solicitor upon the general instructions given by his client, and is signed by the solicitor only; and hence it has been regarded as the mere statement of his counsel, frequently fictitious, and hypothetically constructed, in order to extract a more complete answer from the defendant. On this ground it has been laid down as a rule in England that, 'generally speaking, a bill in chancery cannot be received in evidence in a court of law to prove any facts either alleged or denied in such bill."' It will be remembered that under the ancient system of chancery practice the pleadings were prepared by experts who did not appear in the courts. The pleadings themselves were framed upon a "fictitious and hypothetically constructed" plan, for the purpose of eliciting fuller information by way of answer from the defendant. Our judiciary act of 1799 had for one of its main purposes the abolition of fictitious forms of pleading. It enacted that in suits at law the plaintiff should set forth his cause of action plainly, fully, and distinctly, and that "the ordinary proceeding in chancery shall be a bill, which shall be addressed to the superior court, or the judge presiding therein, and shall plainly set forth the ground of complaint," etc. With the exception of the common law forms in actions of ejectment and trover, those old fictions in pleadings have long been unknown in the system of pleading in Georgia. Our courts have followed the mandate of the enactment above recited, and have required suitors in both forums to set forth plainly their grounds of complaint. The general term "attorney" includes the powers and duties of the solicitor and barrister, and in our courts no distinction is recognized as to the several branches of legal work which were in ancient times parceled out among several classes. The one license confers upon the attorney full power to conduct the cause for his clients through all its stages, and to bind them in all matters pertaining thereto, save where the law has expressly limited his authority. The constitution guaranties to a suitor the right to appear in person or by attorney, and either mode of appearance is as binding as the other. Hence, when the suitor elects to appear by counsel, and plainly sets forth his cause of complaint, all the allegations of fact, material and necessary to the complaint, made in the pleadings by the counsel, are, in legal contemplation, those of the complainant himself. Being such, they are declarations of the complainant, and, if against his interest, are admissible in evidence against him under the ordinary rules governing admissions. Like other admissions, they are subject to explanation and qualification, unless the circumstances render them estoppels under the law. Inasmuch as our system of pleading has done away with the fictions of the English system, upon which was founded the English rule, it follows that, the reason for the rule having ceased, the rule itself should be no longer observed. The two cases relied upon by plaintiffs do not conflict with this ruling. In Sciple v. Northcutt, 62 Ga. 42, the question was whether a sworn bill should be introduced without an amendment which had been made; and in Carr v. Emory College, 32 Ga. 557, it was ruled, not that a bill was inadmissible as containing admissions, but that the entire record of another case, under the facts, was not admissible to show an estoppel.

2. The court having properly admitted in evidence the bill just referred to, the plaintiffs sought to escape the effect of the admissions contained therein by introducing, over defendant's objection, a certificate from the clerk of the court in which it was filed to show that it had been dismissed. This certificate stated this case and another by name, and added, "The above-stated cases have been duly dismissed, as appears from the dockets of said court." In the case of Miller v. Reinhart, 18 Ga. 239, it was held erroneous to admit in evidence a certificate from the clerk of the superior court that a named person was duly...

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