Tomlinson v. Driver

• Decision Date: 31 July 1874
• Citation: 53 Ga. 9
• Parties: William Tomlinson et al, plaintiff's in error. v. Elizabeth Driver, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 9

William Tomlinson et al, plaintiff's in error. v. Elizabeth Driver, defendant in error.

Supreme Court of the State of Georgia

July Term, 1874.

(Atlanta, July Term, 1874.)

Witness. New trial. Judgment. Ejectment. Evidence. Possession. Before Judge Kiddoo. Schley Superior Court. October

Adjourned Term, 1873.

*For the facts of this case, see the decision.

J. A. AnslEy; C. T. Goode, for plaintiffs in error.

No appearance for defendant.

Warner, Chief Justice.

This was an action brought by the plaintiffs against the defendant in the statutory form, to recover the possession of a tract of land in Schley county. On the trial of the case, the jury found a verdict for the defendant. A motion was made for a new trial, on the several grounds set forth thereim, which was overruled by the court, and the plaintiffs excepted. It appears from the evidence in the record that the plaintiffs are the heirs-at-law of George Driver, deceased, in whom was the legal paper title to the land sued for. The defendant claims under her deceased husband, Isaac Driver, who died in possession of the land, but showed no paper title to the land in him. Although Isaac Driver was in possession of the land for several years before his death, the plaintiffs insist that he held such possession only as the tenant of George Driver, their deceased ancestor. On the trial, the defendant was offered as a witness to prove that her husband, Isaac Driver, did not hold possession of the land as the tenant of George, who had the paper title to the land, but claimed the land in his own right under a contract made with Leonard Driver. This evidence of the defendant was objected to on the ground that George Driver was dead. The court overruled the objection and admitted her to testify, and this is the main ground of error which was urged on the argument here.

1. Was the defendant a competent witness under the provisions of the 3854th section of the Code? The main issue on trial in this case, was whether Isaac Driver, the husband of the defendant, held possession of the land as the tenant of George Driver, who had the paper title, or not, and that de-pended on the relation which existed between them, in respect tothat possession. George is dead and cannot testify as to not have testified in his own favor against him, and the defendant, claiming under Isaac, stands in no better condition than he would have done. She is as much the other party to the issue on trial, in legal contemplation, as Isaac Driver, under whom she claims, would have been, if in life, and had been offered as a witness to testify in his own favor, consequently, she cannot *be admitted to testify in her own favor as to the relation in which Isaac held possession of the...