Stewart v. Ellis

• Decision Date: 16 May 1908
• Parties: STEWART et al. v. ELLIS.
• Court: Georgia Supreme Court

61 S.E. 597

130 Ga. 685

STEWART et al. v. ELLIS.

Supreme Court of Georgia

May 16, 1908

Syllabus by the Court.

Where the holder of a bond for title from a deceased person filed an equitable petition against the widow and children of such person, claiming that all of the amount lawfully due had been paid, and seeking to have the title decreed to be in such obligee, and the widow and children of the decedent claimed title by reason of having obtained the land to be set apart to them as a year's support from the estate, the obligee in the bond was not rendered incompetent as a witness to testify to the correct amount of indebtedness to the decedent, because of the death of the latter.

[Ed Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses §§ 598, 599, 625-636.]

Although the judge may have excluded certain evidence given by a witness, yet, when he subsequently permitted substantially the same evidence to be given by the same witness, this furnished no ground for a new trial, whether or not the original ruling was erroneous.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4200-4207.]

If time of payment by the obligee is of the essence of a contract under a bond for title, it may be waived by the conduct of the obligor, such as suing for the purchase money, instead of treating the contract as at an end.

[Ed Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 374.]

A wife cannot bind herself by the assumption of a debt of her husband; but if she gives a note for his debt, and it is sued to judgment against her, she is concluded thereby, and cannot thereafter deny that the debt so placed in judgment was hers.

A mere accidental slip of the tongue by which the presiding judge referred to one of the parties as "the defendant," when he should have said "the plaintiff," will not require the grant of a new trial, where the context plainly shows what was intended, and no harm could have resulted from such inadvertence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4219-4230.]

None of the grounds of the motion for a new trial require a reversal.

Error from Superior Court, Fayette County; E. J. Reagan, Judge.

Equitable petition by Katie C. Ellis against Mrs. L. B. Stewart and others. Judgment for plaintiff and defendants bring error. Affirmed.

Under Civ.Code 1895, § 5269, providing that no person offered as a witness shall be excluded because of interest, with the exception, among others, that a party shall not be admitted to testify in his own favor against a decedent, and section 5270, providing that there shall be no other exceptions allowed under the paragraphs of section 5269, where the holder of a bond for title from a decedent filed an equitable petition claiming that the amount due had been paid, and seeking to have the title decreed to be in him against the widow and children, who claimed that the premises had been set apart to them as a year's support from the estate, the holder of the bond was not rendered incompetent as a witness to testify to the amount of indebtedness to decedent because of the latter's death.

Mrs Katie C. Ellis filed her equitable petition against Mrs. L. B. Stewart and others, alleging in brief as follows: The plaintiff and her sister owned a certain tract of land, which they agreed to exchange with one Gilbert for another tract. Her husband owed debts amounting to $150, and it was agreed that, if Gilbert would pay these, plaintiff and her sister would make a deed to him, together with promissory notes for the amount of such debts so paid, and take a bond for title to the other land. This was done. Her husband became indebted to Stewart & Ward and W. B. Stewart. By agreement with Stewart, and at his instance, a deed to a portion of the land which belonged to the plaintiff was conveyed to Stewart, and he paid Gilbert $150. Stewart made her a bond for title, and she signed certain notes. The amount of her husband's indebtedness to Stewart was claimed to be $400. It was proposed that the husband should make notes for that amount, and she should make notes for $150. In fact, the notes which were presented to her and which she signed were for the whole $550, and in the bond for title the debt to be paid was stated at that amount. All that was lawfully due to Stewart by her was paid. She went to Alabama, leaving a tenant in possession. Stewart took possession of the land without authority, and rented it and received rents from it for several years. Upon an accounting nothing would be due Stewart. Later he died, and his widow had the property set apart to her and her children as a year's support. Plaintiff returned to Georgia, and, at one time finding the property vacant, took possession of it. Mrs. Stewart made an affidavit alleging that the plaintiff and her husband were intruders, and seeking to have them ejected. A counter affidavit was filed and returned to the superior court for trial. Another proceeding for forcible entry and detainer was begun against her and her husband. It was sought to have the last-mentioned proceeding enjoined, to have all the questions between the parties tried in one suit, and to have it decreed that she was the owner of the land, and that Mrs. Stewart and her children had no interest in it. The...