Neely v. Carter

• Decision Date: 13 May 1895
• Citation: Neely v. Carter, 96 Ga. 197, 23 S.E. 313 (Ga. 1895)
• Parties: NEELY v. CARTER et al.
• Court: Georgia Supreme Court

23 S.E. 313

96 Ga. 197

NEELY v. CARTER et al.

Supreme Court of Georgia

May 13, 1895

Syllabus by the Court.

1. A proceeding was instituted to establish a copy of a deed and a copy of a power of attorney, both of which were alleged to have been lost. The deed purported to have been signed by several makers in person, and by two other makers through an attorney in fact, acting under authority conferred by the alleged power of attorney, which purported to have been executed by these two. One of the latter, who was the sole living survivor of the alleged makers of the two instruments and the heirs at law of all the others, were made defendants to the proceeding, some of the heirs being minors, for whom a guardian ad litem was appointed. An answer in resistance to the proceeding was filed by the alleged surviving joint maker, and subsequently adopted as the defense of the minors in an answer filed in their behalf by the guardian ad litem. Held, that this was a "suit *** defended by *** persons jointly *** interested," within the meaning of paragraph by of section 1 of the evidence act of 1889.

2. If such a proceeding had been instituted by the grantee in the alleged lost deed, he would have been incompetent to testify that he would have been incompetent to testify that he saw thereon the name of a deceased maker, in the handwriting of the latter. The object being to prove the genuineness of the signature, to permit such testimony would, in effect, be allowing the witness to testify in his own favor, "as to" a transaction solely between himself and the deceased party. As thus proving the signature would only be another method of proving the fact that the deceased actually subscribed his name to the paper, and as the witness would not be competent to testify to this fact directly, where the circumstances were such that no other alleged maker could deny the truth of his testimony, he certainly would not under like circumstances, as above indicated, be permitted to testify indirectly, in the manner stated, to the existence of the same fact. It follows, under paragraph d of the section cited, that such grantee, after selling and conveying, with warranty of title, the premises described in the alleged lost deed, and being, because of such warranty, interested in the result of a proceeding instituted by his vendee to establish a copy of the deed, was incompetent to testify, as herein stated, in favor of the plaintiff in that proceeding.

3. A copy of an alleged lost deed, purporting to have been executed by several joint makers, cannot be established without due proof of its execution by all of them. Proof of its execution by one only is not sufficient.

4. The evidence in the present case not being such as to warrant a finding that any of the alleged makers, save one, had signed the deed of which it was sought to establish a copy, the court was right in granting a nonsuit.

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

Action by R. C. Neely against E. A. Carter and others. From an order of nonsuit, plaintiff brings error. Affirmed.

E. H Callaway and J. J. Jones & Son, for plaintiff in error.

Johnston & Brinson, for defendants in error.

LUMPKIN J.

A proceeding was instituted in the superior court of Burke county by Neely against Edward A. Carter and others to establish copies of a deed and power of attorney, alleged to have been lost. The plaintiff was the vendee of Mrs. Electra A. Carter and her daughter, Annie Carter, who were the grantees in the alleged lost deed. This deed purported to have been executed by several joint makers, all of whom had died except the defendant Edward A. Carter. The other defendants to the proceeding were the heirs at law of the deceased persons whose names appeared as makers of the two instruments of which copies were sought to be established. One of these alleged makers, was Emma Carter. Her name and that of Edward A. Carter purported to have been signed to the deed by their attorney in fact, Heman H. Perry, who had the authority to do so it the power of attorney above mentioned was genuine. An answer was filed by Edward A. Carter, objecting to the establishment of the writings in question, particularly the power of attorney alleged to have been executed by himself and Emma Carter; the answer averring that neither he nor the said Emma had ever executed the so-called "power of attorney." The other defendants, who were minors, appearing by next friend, adopted the defense of Edward A. Carter. It was, of course, incumbent upon the plaintiff to present proof showing the due execution of the alleged lost papers. This he endeavored to do, but at the trial experienced considerable difficulty, because some of the persons whose names appeared on these papers as attesting witnesses were dead, and the recollection of the living witnesses was so uncertain and imperfect as to render their testimony of but little probative value. The result of the trial was the granting of a nonsuit. This action of the court, and the rejection of certain evidence, present the questions made for review.

1. In the first place, it seems clear that the proceeding with which we are now dealing was a suit "defended by persons jointly interested." Defeating the establishment of the lost instruments resulted, we are bound to presume, in some benefit to Edward A. Carter and his minor codefendants; and whatever that benefit was, their interest in it must have been, to some extent, similar to his. We therefore think the case falls literally within the description embraced in the language used in paragraph b of section 1 of the evidence act of 1889. We will, in the next division of this opinion, discuss the incompetency to testify imposed upon witnesses by that paragraph.

2. The answers of Mrs. Electra A. Carter to interrogatories were offered in evidence. Among other things, she testified, in effect, that a power of attorney and a deed, of which the papers before the court were substantial copies, had been at one time in her possession; that the names of Edward A. and Emma Carter appeared on the power of attorney as makers thereof, and that the names of certain other persons (the alleged grantors) appeared upon the deed as makers of that instrument; that she was familiar with the handwriting of all these persons, and from such knowledge could testify that the signatures of all were genuine. She further testified that the original papers were not delivered to her by any of the persons whose names were subscribed to the same, but were handed to her by her attorney. The court allowed so much of the above-recited testimony as related to the genuineness of the signature of Edward A. Carter to be read to the jury, but rejected all of the testimony relating to the genuineness of the signatures of the other alleged makers of the two instruments. In order to test the admissibility of that portion of Mrs. Carter's testimony which the court rejected, we must first examine the question as it would have stood had she herself been the...