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

29 S.E.2d 700

197 Ga. 536

MYERS v. PHILLIPS.

No. 14819.

Supreme Court of Georgia

April 6, 1944

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: 'I went out there on Sunday, that was March 12th, and when I got ready to leave I had a flat tire on my automobile, and I have always made a practice to keep a record of punctures and various other things that happen to the car, such as changing oil, cleaning sparkplugs or other small things, because I have always had a horror of putting patched-up tires on the front wheel where I would be making speed at all, for fear I would have a blowout and meet other cars in a head-on collision, so I had a book, and every time I would have a puncture I would record it in this book, and at this particular time, Sunday, March 12th, I had a flat tire in front of 122 East Taylor Avenue, which is Alvin Park's residence. Since this suit has been filed, I have looked at that book several times.' 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: 'It was Sunday afternoon I saw this deed and had the talk with Alvin Park that I have talked about. That afternoon we went a little after three o'clock, right around three or just a little bit after. Alvin was not there when I got there around four o'clock. He told me he was at the aviation field. He didn't tell me about being in Griffin that day. He didn't tell me that that was the original date he had set for his marriage, and that he called his intended wife from Griffin that day about two o'clock long distance and talked to his mother-in-law, Mrs. Orr. He didn't tell me about that. He didn't tell me a word about being in Griffin that day about some relative of his, a cousin or somebody that was sick. I got out there about three o'clock, and it was an hour before Alvin came, Just about. Mrs. Riedell was not there when I got there.'

Mrs. W. E. Orr, Sr., testified: 'I remember the first date that was set by my daughter and Mr. Alvin Park to get married was the 12th of March, 1939. They actually got married on the 20th. On the first day that was set, the 12th of March, we got two telephone calls from Alvin Park during the day. I got a telephone call about eleven o'clock, I recognized the voice of Alvin Park when I answered that phone. I had heard him talk before that time. I had known him about ten years. I recognized his voice. He said he was in Griffin. That was eleven o'clock in the morning. We got another telephone call from him at a later time in the day, at two o'clock. At that time I recognized the same voice as the voice of Alvin Park. I know it was him. I talked with him at that time. That was a long distance call also from Griffin. And when I responded I talked with Alvin Park. I did not see or hear from him any more that day. He only asked me to tell Ethelene when she came in; he called me at eleven and asked me to tell Ethelene if she came in not to leave out, go out anywhere, that he wanted to talk to her about two o'clock. When I answered the telephone at two o'clock she talked with him, I called her and she talked with him.'

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...