Myers v. Phillips
Decision Date | 06 April 1944 |
Docket Number | 14819. |
Citation | 29 S.E.2d 700,197 Ga. 536 |
Parties | MYERS v. PHILLIPS. |
Court | Georgia Supreme Court |
Syllabus by the Court.
1. In a suit instituted or defended by the personal representative of a deceased person, the opposite party is not rendered incompetent as a witness, to give evidence of physical facts which do not involve a communication or transaction with the deceased.
2. A transaction or communication with a deceased person, as used in the Code, § 38-1603(1), means some transaction or communication had directly with the deceased, something personal between the surviving and the deceased parties, a transaction or communication of such character that the deceased, if alive, could deny, rebut, or explain the statement of the other party.
3. On the trial of an action, instituted by the personal representative of a decedent to cancel a deed on the ground that it had never been delivered, the transferee of the grantee named therein, who is the defendant in the suit, is a competent witness to testify that she first saw the deed on the day after its purported date, and that it was then in the hands of the named grantee.
4. 'Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth.' Lankford v. Holton, 187 Ga. 94, 102, 200 S.E. 243.
This was a suit in equity brought in Fulton superior court by Mrs. Ethelene Park Phillips as the sole heir at law of her deceased husband, Alvin J. Park, against Mrs. John B Myers as the sole heir at law of Mrs. Addie Park Riedell (or Riddell), seeking the cancellation of two deeds--one executed by the plaintiff's husband on March 11, 1939, conveying described real estate to his mother, Mrs. Addie Park (afterwards Mrs. Riedell), and the other a deed executed by the said Mrs. Addie Park Riedell to the defendant--and seeking a judgment for rents and profits from the date the defendant took possession until the termination of the suit. The plaintiff alleged that her husband's estate had been administered and the administrator discharged, and that the administrator had not attempted to administer this property.
The basis of the suit is the allegation that the deed from the plaintiff's husband to his mother was never delivered and that after his death the deed was found in a lock box in his apartment, and was then handed to Mrs. Addie Park Riedell, without any delivery in Park's lifetime.
When the case came to trial, after evidence was submitted by the plaintiff, witnesses testified for the defendant. One, J. B. Smith, testified that at the request of Alvin Park he went out to see some furniture which Park said he wanted to sell; that Park told the witness he would like for the witness to get in touch with Park's mother because some of the furniture was hers. The witness further testified: He testified that on this day, when he reached Park's apartment, Park showed him a deed which he had made on March 11, 1939, the previous day, conveying to his mother all of his real estate in Fulton County; that the witness asked Park if he had informed his mother, and he replied he had not, but consented for Smith to call his mother in. Smith did so, handing her the deed. After reading it, she handed it back to Smith, and Smith handed it back to Park; that Park said to his mother, 'It is done now, there isn't anything I can do now,' and handed her the deed and said, 'You take it and sell it or do whatever you please, it is yours;' that she took the deed and went to her daughter's apartment, carrying with her the tin box and the deed; that in a few minutes she returned with the box and the deed and said, 'Alvin, I am going to put the deed in this tin box and I want you to lock it up in the safe for safekeeping; my husband is on a spree and I am afraid to take it home for fear he will get in the box and destroy the papers, and I want you to lock it up for me until I call for it.' On cross-examination Smith testified:
Mrs. W. E. Orr, Sr., testified:
The jury returned a verdict for the plaintiff, and found the sum of $945 as rents and profits. Besides the general grounds the amended motion for new trial contains seven special grounds, five of which complain of alleged erroneous charges; another, of the court's failure to charge in the following language, 'A bona fide purchaser for value, and without notice of an equity, will not be interfered with by equity,' the movant contending that because of the recital in the deed--'in consideration of $5.00 in hand paid and love and affection for my daughter'--there was a...
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Ferguson v. State of Georgia, 44
...of the Georgia courts and Acts of the legislature since the 1866 Act. See, e.g., Blount v. Beall, 95 Ga. 182, 22 S.E. 52; Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700; Manley v. Combs, 197 Ga. 768, 781—782, 30 S.E.2d 485, 493—494; Sisk v. State, 182 Ga. 448, 453, 185 S.E. 777, 781; Berry v......
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