Morgan v. Harrold

• Decision Date: 13 July 1891
• Citation: 13 S.E. 710,87 Ga. 382
• Parties: Morgan et al. v. Harrold et al.
• Court: Georgia Supreme Court

13 S.E. 710

87 Ga. 382

Morgan et al.

v.Harrold et al.

Supreme Court of Georgia.

July 13, 1891.

Competency of Witness — Transactions with Decedent.

1. In an action against surviving partners brought by the beneficiaries of a trust fund, the trustee is prima facie incompetent as a witness for the plaintiffs to affect the partnership with notice of the trust, by means of a transaction or communication between himself and a member of the partnership now deceased, the evidence act of 1889 declaring that "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. "

2. There was no error in granting a nonsuit.

(Syllabus by the Court.)

Error from superior court, Sumter county; Allen Fort, Judge.

Suit by Russell Morgan and others against N. B. Harrold and others, survivors, to recover trust funds. Nonsuit granted. Plaintiffs bring error. Affirmed.

Hinton & Cutts, for plaintiffs in error.

B. P. Hollis and E. A. Hawkins, by Harrison & Peepies, for defendants in error.

Bleckley, C. J. 1. The suit was by the children of Morgan against the surviving partners of the firm of Harrold, Johnson & Co. and others. It involved the tracing of a trust fund which Morgan had held as trustee for the plaintiffs, and which he had wasted. A portion of this fund had been invested by him in certain realty, which was paid for in part with his own money and in part with the trust money. He took the title to this property in his own name, with no declaration or disclosure of any trust upon the face of the conveyance. He afterwards sold and conveyed it as his own to Harrold, Johnson & Co., and they paid him for it. The plaintiffs sought by this action to assert their rights as beneficiaries of the trust, and to charge Harrold, Johnson & Co. with their equitable interest in the realty thus acquired by the firm from their trustee. To affect the firm with notice of the trust, they offered at the trial to prove by their father, the trustee, conversations which he had with Thomas Harrold, (a member of the firm since deceased,) in which he informed him (Harrold) that some of the trust money was invested in this land. These conversations were prior to and at the time of the execution of his deed to the firm. There was no suggestion that any other member of the firm was present at or privy to the conversations or any of them. The court ruled the witness incompetent to give the evidence offered, because Thomas Harrold was dead. The witness act of 1889, in clause b, declares that " where any suit is instituted or defended by partners, persons jointly liable, or interested, the opposite party shall not be admitted to testify in his own favor as to transactions or communications solely with an insane or deceased partner, or person jointly liable or interested, and not also with a survivor thereof." Under this provision, if one or all of the plaintiffs had been present at the alleged conversations with Harrold, and had heard notice of the trust communicated to him, they would have been incompetent to so testify at the trial, Harrold being then dead. Thus, the plaintiffs themselves were not competent witnesses to prove what they sought to prove by their trustee. In clause d the act declares that "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...