Whiddon v. Hall
| Decision Date | 16 May 1923 |
| Docket Number | 3319. |
| Citation | 118 S.E. 347,155 Ga. 570 |
| Parties | WHIDDON v. HALL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a person acts as "agent or attorney" for both parties in a transaction, he is a competent witness, under Civil Code 1910, § 5858, par. 5, to testify touching such transaction in favor of the surviving party against the other party, or the agent of the latter, who was represented in such transaction by such agent, although both of the latter were dead when such agent or attorney testified.
Under said section, the agent or attorney is incompetent to testify against the deceased or insane party in favor of the surviving or sane party, as to transactions or communications had with the latter, only when such agent or attorney represented the surviving or sane party alone.
When the evidence was conflicting or doubtful upon the question whether such agent or attorney was the agent or attorney of both parties, or was the agent or attorney of the surviving or sane party alone, the court should have admitted his testimony, and should have instructed the jury to discard and wholly disregard his evidence, if they found that he was the agent or attorney of the surviving party alone.
The court cannot direct a verdict when there is conflict in the evidence.
When there is any evidence as to the delivery of a deed, it is a question of fact for the jury, and not a question for the court to decide, whether there has been delivery of the deed.
Presumptions in favor of the delivery of a deed arising from its possession by the grantee, its due recordation, its attestation by an officer, and the possession of the premises conveyed under the deed, are evidence of delivery; and, while these presumptions are rebuttable ones, the evidence of an unimpeached witness that the deed was not delivered raises a conflict between such presumptive evidence of delivery and such direct evidence of nondelivery, which can only be decided by the jury, as it cannot be said, as a matter of law, that the jury is bound to accept evidence as true although not contradicted by direct evidence.
The court erred in directing a verdict for the claimant, under the evidence.
Error from Superior Court, Worth County; R. Eve, Judge.
Proceeding by E. D. Whiddon, administrator, for the sale of land, to which M. D. Hall filed a claim. Judgment for the claimant and the administrator brings error. Reversed.
Perry & Tipton, of Sylvester, for plaintiff in error.
Passmore & Forehand, of Sylvester, and Pope & Bennet, of Albany, for defendant in error.
1. An attorney at law, on his direct examination, testified in a claim case in behalf of the claimant and against the administrator of the vendee, who was the opposite party, that he was employed by an agent of the vendee to prepare and have executed a deed to lands from the claimant to the vendee, and that, after the deed was executed, by agreement between the vendor and the vendee, the deed was placed with him in escrow, to be delivered to the vendee upon the performance by her agent of certain terms and conditions, that the agent of the vendee had not fully complied with these terms and conditions, and that the agent obtained from him the deed for the purpose of exhibiting it to the vendee to satisfy the latter of its existence and of the good faith of the agent in this transaction, upon the promise of the agent to return the instrument to the attorney as soon as this purpose was accomplished, which promise the agent did not keep, but violated the same by delivering the instrument to the vendee. On his cross-examination this witness testified that the claimant gave him the deed, and told him to keep it for her until the contract was complied with, and that he was acting for her. The administrator of the vendee objected to this testimony of the attorney, as to the agreement under which the deed was placed with him and as to the failure of the agent to comply with its terms on the ground that, being the agent or attorney at law of the claimant in the transaction by which the deed was placed with him in escrow, he was incompetent to testify to the above facts in favor of the claimant, who was the surviving party, against the vendee whose administrator was the opposite party in the case, both the vendee and her agent, with the latter of whom the alleged agreement was made, being dead at the time of the trial. The court overruled this objection, and admitted the above evidence, holding the attorney to be a competent witness to testify to this transaction between the vendor and the deceased agent of the vendee. Was the attorney, under the above facts, a competent witness to testify to the above facts in behalf of the claimant?
The solution of this question depends upon the proper construction of paragraph 5 of section 5858 of the Civil Code. This paragraph declares that:
"No agent or attorney at law of the surviving or sane party, at the time of the transaction testified about, shall be allowed to testify in favor of a surviving or sane party, under the circumstances where the principal, a party to the cause, could not testify; nor can a surviving party or agent testify in his own favor, or in favor of a surviving or sane party, as to transactions or communications with a deceased or insane agent, under circumstances where such witness would be incompetent if deceased agent had been principal."
If this witness was the attorney for the claimant, or if this provision embraces mutual agents and the attorneys of both parties, and if this witness was the attorney of both parties, then this witness was incompetent. If this paragraph does not include mutual agents and the attorneys of both parties, and if this witness was the attorney of both parties, then this witness was competent. The agent is a competent witness either for or against his principal. His interest goes to his credit. Civil Code 1910, § 3606. This is the general rule. It was the law at the time of the passage of the Evidence Act of 1866. Lowrys v. Candler, 64 Ga. 236. That act declared that:
"The inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in civil and criminal cases, should be laid before the persons who are to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced for the truth of testimony."
And to remove such incapacities this act provided that:
"No person offered as a witness shall hereafter be excluded, by reason of incapacity from crime or interest, or from being a party, from giving evidence," except: (1) When one of the original parties to the contract or cause of action in issue or on trial was dead, or shown to be insane, or where an executor or administrator was a party in any suit on a contract of his testator or intestate, the other party should not be permitted to testify in his own favor; (2) no person charged with the commission of crime should be competent or compellable to give evidence for or against himself; (3) no husband or wife was competent or compellable to give evidence for or against each other; (4) no attorney was compellable to give evidence against his client; and (5) nothing in this act should be applicable to any action, suit, proceeding or bill, in any court, instituted in consequence of adultery, or to any action for breach of promise of marriage. Ga. Laws 1866, p. 138.
Thus this act swept away, with the above five exceptions, all incapacities of persons to testify in civil or criminal cases. So under this statute this court held that an agent who made a contract for his principal was a competent witness for his principal, although the other party to the contract was dead, because not testifying in his own behalf. Scurry v. Cotton States Life Ins. Co., 51 Ga. 625; Lowrys v. Candler, supra; Davis v. McLester, 65 Ga. 132.
By the evidence act of 1889, the Legislature, fearing or feeling that it had gone too far in the act of 1866, took the back track and created some new "incapacities," which obstructed "the inquiry after truth in courts of justice." One of these is the provision now contained in paragraph 5 of section 5858 of the Code of 1910, as amended by the Evidence Act of 1890. Another was this:
"No person who was the agent or mutual friend of both parties, or who acted as attorney or counsel for both parties in any transaction between them, shall be a competent witness for the living party touching such transaction." Ga. Laws 1889, p. 85.
By the provision of the act of 1889, now embodied in said paragraph and section of the Code, no agent or attorney at law of either party at the time of the transaction testified about is competent to testify in favor of the surviving or sane party under circumstances where the principal, as a party to the cause, could not testify; that is, such agent or attorney could not testify to transactions or communications had solely with such insane or deceased person, and no surviving party or agent could testify in his own behalf or in behalf of a surviving or sane party as to transactions or communications with the deceased or insane agent under circumstances where such witness would be incompetent if the deceased agent had been principal. This incompetency still exists, and renders an agent or attorney incompetent to testify in favor of a surviving or insane party under the circumstances above enumerated. The other provision of the act of 1889 above set out rendered the agents or mutual friends of both parties, and attorneys at law who acted for both parties in any transaction between them, altogether incompetent to testify for the living party touching such transaction. ...
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