Powell v. Watts

• Decision Date: 28 February 1884
• Citation: 72 Ga. 770
• Parties: Powell. vs. Watts.
• Court: Georgia Supreme Court

72 Ga. 770

Powell. vs. Watts.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

Evidence Admissions. Witness. Practice in Superior Court. Before Judge Hammond. DeKalb Superior Court. September Term, 1883.

A fi. fa. in favor of F. T. Powell against George W. Watts and Edward Watts was levied upon certain land as the property of Edward Watts, and a claim was interposedby William Watts. The fi.fa. was founded on an indebtedness created in 1866, and reduced to judgment in 1868. The claimant was a son of the defendant in fi. fa., and claimed under a deed from his father, dated in 1867, for the expressed consideration of $700.00. The principal issue in the case was this: Plaintiff insisted that the defendant inf. fa., being heavily in debt, had conveyed away all his lands and property to his children, except a small amount which he had since sold; that the deed to this claimant was, in fact, voluntary; and that this was done to avoid payment of debts; while claimant contended that he purchased the land bona fide for value.

The jury found the land not subject. Plaintiff moved for a new trial, on the following among other grounds:

(1.) Because the court, upon objection made by the claimant that Edward Watts, the defendant in fi. fa., was dead, refused to allow the plaintiff in fi.fa. to testify to admissions made by Edward Watts while he was in possession of the land conveyed, that he had given his lands to his children, with all his property of every kind; that he had conveyed this property to his children to keep from paying the debt of one Killis Brown, for whom he was a security; and that for his debt the said Powell would have to see his children.

(2.) Because the court, upon objection of the claimant, refused to allow the plaintiff in fi.fa. to testify that he told claimant that his father, Edward Watts, had said he had conveyed all his property to his children to keep from having to pay the Killis Brown debt, and that he had no property left, and that he must see his children about his debt;—the court allowing the plaintiff in fi.fa. to testify as to what the claimant said when he was told what his father had said to the plaintiff.—The objection to the evidence was that Edward Watts was dead. [Plaintiff offered to testify that the defendant in fi. fa. made the statement set out in this ground; that he (plaintiff) communicated this to claimant, who responded that his fatherdid right in conveying his property to avoid the Brown debt. The court admitted the reply of claimant, but rejected the statements made as coming from the defendant.]

(3.) Because the court overruled the objection of plaintiff to the competency of the claimant to testify as to the consideration of the deed made by the defendant in fi.fa. to him, the defendant in fi.fa. being dead, and allowed the claimant to testify that lie paid to the said Edward Watts, for the land conveyed in said deed, the consideration therein recited, in money about two hundred dollars, and the balance in work for him, after becoming of age.

(4.) Because the court overruled the objection of plaintiff, that the intention of the claimant in the acceptance of the deed to the land levied upon, from his father, Edward Watts, was irrelevant, and allowed the claimant, in answer to this question, " Do you know of any scheme on your part to defraud Dr. Powell or William Wright, in your acceptance of this deed?" to testify as follows: " When I purchased the place, I had no knowledge or thought but that it was a bona fide transaction as was ever made between a buyer and a seller. If I had thought anything else, I certainly would not have bought the place and paid for it."

(5.) Because the court overruled the objection of the plaintiff in fi.fa., and allowed the claimant to read in evidence the original claim papers, with the findings of the juries therein, to the effect that the property levied upon was not subject in two cases in DeKalb superior court, where the execution of plaintiff had been levied upon other lands which had been conveyed by Edward Watts to his other children at the same time that the deed to the land in controversy was made to claimant. These claims, with the findings of the juries, remained before the jury for twenty-four hours, and were commented upon by counsel for the claimant in argument to the jury, and were withdrawn by the court just before the conclusion of the argument of counsel for the claimant to thejury, and the court in his charge instructed the jury that the claim records had been withdrawn from them, and were not to be considered by them in arriving at the conclusion they might come to.

(6.) Because the verdict was contrary to law and evidence.

The motion was overruled, and plaintiff excepted.

Candler, Thomson & Candler, for plaintiff in error.

W. L. Calhoun, for defendant.

Hall, Justice.

1. The plaintiff in fi.fa. proposed to prove a conversation with the defendant which he communicated shortly after it took place to the claimant. It appeared that the defendant was dead at the trial, and on that ground the court, on direction, excluded the conversation between the plaintiff and defendant, and allowed only what was said by the claimant in reply thereto to go to the jury. There could have been no objection to the competency of admissions made by the claimant to the plaintiff of matters affecting the title to the property in controversy between them; the plaintiff was cleariy entitled to it, as well as to all the conversation therewith connected. Code, §3791. This is a familiar and indisputable principle. " The plaintiff was entitled to have the whole of the conversation that took place between the parties at the time given in evidence, so that the jury might judge of its weight and effect, " says Warner, C. J., in 47 Ga., 147; Ib., 642, 647. Had the conversation between...