Smith v. Duhart

• Decision Date: 13 January 1922
• Docket Number: (No. 2672.)
• Citation: 152 Ga. 554,110 S.E. 301
• Parties: SMITH . v. DUHART.
• Court: Georgia Supreme Court

152 Ga. 554

110 S.E. 301

SMITH .

v.DUHART.

(No. 2672.)

Supreme Court of Georgia.

Jan. 13, 1922.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Assignee.]

Error from Superior Court, Houston County; Malcolm D. Jones, Judge.

Suit by Anderson Duhart against Mrs. G. W. Smith. Judgment for plaintiff, and defendant brings error. Affirmed.

R. D. Feagin, of Macon, and R. N. Holtzclaw, of Perry, for plaintiff in error.

Jule Felton, Jule W. Felton, and G. C. Robinson, all of Montezuma, for defendant in error.

GILBERT, J. [1-3] Headnotes 1, 2, and 3 do not require elaboration.

4. This is a proceeding in equity, praying for cancellation of an administrator's deed to a one-fourth interest in described land, and for injunction.

Ground 1 of the amendment to the motion for a new trial complains that the court, over objection of the defendant, permitted Anderson Duhart, the plaintiff, to testify as follows:

"I had an agreement with my father with reference to the sale of his interest in this land"

—the ground of objection being that the witness was incompetent to testify under Civil Code, § 5858, as to any transaction with his father, the father being dead, and the defendant, Mrs. G. W. Smith, holding a deed from the administrator of the deceased father, and relying upon the deed as her title to a one-fourth undivided interest In the land, and the plaintiff relying upon an alleged agreement with his father and his performance of the same as the basis of his right to recover from the defendant in the case.

Ground 2 of the amendment to the motion for a new trial complains that the court permitted Anderson Duhart, the plaintiff, to testify as follows:

"I told him [Mr. Bloodworth] my father and myself had made a trade about the land" —the objection raised at the time being the same as that stated in the first ground. The admission of this evidence over the objection raised was not error. The suit was instituted by Anderson Duhart, claiming under a parol contract fully performed with his deceased father, and the section of the Code cited does not make him an incompetent witness in his own behalf. The defendant in the suit claimed under a deed from the administrator of the deceased. The grantee in the deed was not an immediate assignee or transferee, such as contemplated in Code, § 5S58, par. 1; and therefore the evidence was not incompetent. Castleberry v. Parrish, 135 Ga. 528, 69 S. E. 817; Causey v. White, 143 Ga. 7, 84 S. E. 58; Purvis v. Paste, 144 Ga. 16, 85 S. E. 1012. And compare Kramer v. Spradlin, 148 Ga. 805, 98 S. E. 487.

5. The evidence authorized the jury to find that in the year 1873 the land in question had been conveyed by warranty deed to the plaintiff's mother, Elizabeth Duhart, and her children, and that Elizabeth Duhart subsequently died, leaving Anderson Duhart as her only child and Hector Duhart, her husband. Later, on the death of Hector Duhart, J. W. Bloodworth qualified as administrator on the estate of the latter. He applied for and obtained an order for the sale of a one-fourth undivided interest In the land described in the deed in question as the property of Hector Duhart, deceased. Pursuant to such order the property was sold to Mrs. G. W. Smith, the defendant in this case; and the administrator, in his official capacity, duly executed to the purchaser a deed purporting to convey the one-fourth undivided interest in the land. This suit is by Anderson Duhart for the purpose of canceling this administrator's deed. On the trial J. W. Bloodworth, administrator, testified in part as follows:

"I never saw the land. * * * I did not take any legal steps to reduce it to my possession; I did not know how."

Anderson Duhart, the plaintiff, testified in part as follows:

"After the death of my mother my father went in possession of the land. I never surrendered possession of the land voluntarily to anybody. I rented the land out the year after my fath...