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In Myers v. Phillips, 197 Ga. 536 (4), 542 (29 S.E.2d 700), the language of Lankford v. Holton, supra, at page 102, was quoted in headnote 4. However, in the opinion at page 542, it stated that if the positive and uncontradicted direct testimony of unimpeached witnesses was "perfectly consistent" with the circumstantial evidence, then such direct testimony would control, making a question of law for the court unless the circumstantial evidence demanded a different finding.
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14819.
APRIL 6, 1944.
Equitable petition. Before Judge Dorsey. Fulton superior court December 31, 1943.
Woodruff, Ward Etheridge and Brandon, Matthews, Long Nall, for plaintiff in error.
W. E. Harclerode and H. A. Allen, contra.
1. In a suit instituted or defended by the personal representative of a deceased person, the opposite party is not rendered incompetent as a witness, to give evidence of physical facts which do not involve a communication or transaction with the deceased person.
2. A transaction or communication with a deceased person, as used in the Code, § 38-1603 (1), means some transaction or communication had directly with the deceased, something personal between the surviving and the deceased parties, a transaction or communication of such character that the deceased, if alive, could deny, rebut, or explain the statement of the other party.
3. On the trial of an action instituted by the personal representative of a deceased person to cancel a deed on the ground that it had never been delivered, the transferee of the grantee named therein, who is the defendant in the suit, is a competent witness to testify that she first saw the deed on the day after its purported date, and that it was then in the hands of the named grantee.
4. "Direct and positive testimony, as distinguished from testimony circumstantial, opinionative, or actually negative in character, which is given by an unimpeached witness as to the existence of a fact apparently within his own knowledge, which is not in itself incredible, impossible, or inherently improbable, and which is not contradicted directly or by proof of facts or circumstances that could be taken as incompatible with such testimony, can not be arbitrarily rejected by a jury or other trier of the facts upon the mere surmise that it perhaps might not be in accord with the truth." Lankford v. Holton, 187 Ga. 94, 102 ( 200 S.E. 243).
No. 14819. APRIL 6, 1944.
This was a suit in equity brought in Fulton superior court by Mrs. Ethelene Park Phillips as the sole heir at law of her deceased husband, Alvin J. Park, against Mrs. John B. Myers as the sole heir at law of Mrs. Addie Park Riedell (or Riddell), seeking the cancellation of two deeds — one executed by the plaintiff's husband on March 11, 1939, conveying described real estate to his mother Mrs. Addie Park (afterwards Mrs. Riedell), and the other a deed executed by the said Mrs. Addie Park Riedell to the defendant — and seeking a judgment for the rents and profits from the date the defendant took possession until the termination of the suit. The plaintiff alleged that her husband's estate had been administered and the administrator discharged, and that the administrator had not attempted to administer this property. The basis of the suit is the allegation that the deed from the plaintiff's husband to his mother was never delivered; and that after his death the deed was found in a lock box in his apartment, and was then handed to Mrs. Addie Park Riedell without any delivery in Park's lifetime.
When the case came to trial, after evidence was submitted by the plaintiff, witnesses testified for the defendant. One, J. B. Smith, testified that at the request of Alvin Park he went out to see some furniture which Park said he wanted to sell; that Park told the witness he would like for the witness to get in touch with Park's mother because some of the furniture was hers. The witness further testified: "I went out there on Sunday, that was March 12th, and when I got ready to leave I had a flat tire on my automobile, and I have always made a practice to keep a record of punctures and various other things that happen to the car, such as changing oil, cleaning spark-plugs or other small things, because I have always had a horror of putting patched-up tires on the front wheel where I would be making any speed at all, for fear I would have a blow-out and meet other cars in a head-on collision, so I had a book, and every time I would have a puncture I would record it in this book, and at this particular time, Sunday, March 12th, I had a flat tire in front of 122 East Taylor Avenue, which is Alvin Park's residence. Since this suit has been filed, I have looked at that book several times." He testified that on this day, when he reached Park's apartment, Park showed him a deed which he had made on March 11, 1939, the previous day, conveying to his mother all of his real estate in Fulton County: that the witness asked Park if he had informed his mother, and he replied he had not, but consented for Smith to call his mother in. Smith did so, handing her the deed. After reading it, she handed it back to Smith, and Smith handed it back to Park; that Park said to his mother, "It is done now, there isn't anything I can do now," and handed her the deed and said, "You take it and sell it or do whatever you please, it is yours;" that she took the deed and went to her daughter's apartment, carrying with her the tin box and the deed; that in a few minutes she returned with both the box and the deed and said, "Alvin, I am going to put the deed in this tin box, and I want you to lock it up in the safe for safe-keeping; my husband is on a spree and I am afraid to take it home for fear he will get in the box and destroy the papers, and I want you to lock it up for me until I call for it." On cross-examination Smith testified: "It was Sunday afternoon I saw this deed and had the talk with Alvin Park that I have talked about. That afternoon we went a little after three o'clock, right around three or just a little bit after. Alvin was not there when I got there around four o'clock. He told me he was at the aviation field. He didn't tell me about being in Griffin that day. He didn't tell me that that was the original date he had set for his marriage, and that he called his intended wife from Griffin that day about two o'clock, long distance, and talked to his mother-in-law, Mrs. Orr. He didn't tell me about that. He didn't tell me a word about being in Griffin that day about some relative of his, a cousin, or somebody that was sick. I got out there about three o'clock, and it was an hour before Alvin came, just about. Mrs. Riedell was not there when I got there."
Mrs. W. E. Orr Sr. testified: "I remember the first date that was set by my daughter and Mr. Alvin Park to get married was the 12th of March, 1939. They actually got married on the 20th. On the first day that was set, the 12th of March, we got two telephone calls from Alvin Park during the day. I got a telephone call about eleven o'clock. I recognized the voice of Alvin Park when I answered that `phone. I had heard him talk before that time. I had known him about ten years. I recognized his voice. He said he was in Griffin. That was eleven o'clock in the morning. We got another telephone call from him at a later time in the day, at two o'clock. At that time I recognized the same voice as the voice of Alvin Park. I know it was him. I talked with him at that time. That was a long-distance call, also from Griffin. And when I responded I talked with Alvin Park. I did not see or hear from him any more that day. He only asked me to tell Ethelene when she came in — he called me at eleven and asked me to tell Ethelene if she came in not to leave out, go out anywhere, that he wanted to talk to her about two o'clock. When I answered the telephone at two o'clock she talked with him; I called her and she talked with him."
The jury returned a verdict for the plaintiff, and found the sum of $945 as rents and profits. Besides the general grounds, the amended motion for new trial contains seven special grounds, five of which complain of alleged erroneous charges; another, of the court's failure to charge in the following language: "A bona fide purchaser for value, and without notice of an equity, will not be interfered with by equity," the movant contending that because of the recital in the deed — "in consideration of $5.00 in hand paid and love and affection for my daughter" — there was a presumption of law that the defendant was a bona fide purchaser for value. The remaining ground complains that the court erroneously ruled out the testimony of the defendant to the effect that the first time she ever saw the deed from Park, the deceased, to Mrs. Riedell, also deceased, was on March 12, 1939, and that Mrs. Riedell, the grantee, had it; the court ruling that it was a transaction with a deceased person.
The motion for new trial was denied, and the defendant excepted.
1, 2, 3. The rule in this State is that a party to a suit is not rendered incompetent to give testimony therein unless such party falls within some exception in the Code, § 38-1603. It is claimed by the defendant in error that the proffered testimony of Mrs. Myers, the plaintiff in error, was properly excluded under subsection 1 of the cited section, which reads as follows: "Where any suit shall be instituted or defended by a person insane at the time of trial, or by an indorsee, assignee, or transferee, or the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane of deceased person as to transactions or communications with such insane or deceased person whether such transactions or communications were had by such insane or deceased person with the party testifying or with any other person." The insistence is that Mrs. Phillips, the plaintiff in the trial court, who was the widow of Park and his sole heir at law, all of his debts being paid, is his personal representative, so as to make this a suit instituted by the personal representative of a deceased person. Code, § 113-903; Johnson v. Champion, 88 Ga. 527 ( 15 S.E. 15); Killian v. Banks, 103 Ga. 245 ( 29 S.E. 971); Willis v. Bonner, 136 Ga. 720 ( 71 S.E. 1048). On the other hand, it is contended that Mrs. Phillips can not be treated as the personal representative of her deceased husband since her petition shows that another person was appointed administrator of his estate, and was discharged without attempting to administer the land here involved, and therefore that this suit must be treated as one filed by Mrs. Phillips in her individual capacity as an heir at law. As to this, see the list of authorities collected in Helton v. Shellnut, 186 Ga. 185 (3) ( 197 S.E. 287). We can, however, by-pass these positions, since no matter how the issue thus raised be determined, the witness was not incompetent to give the testimony sought, even though she be the opposite party in a suit instituted by the personal representative of a deceased party. She was not seeking to give testimony in her own favor as to transactions or communications with the deceased person. She was handed the deed, dated March 11, 1939, and asked when was the first time she ever saw it; and she answered, "on March 12, 1939." The next question was, "I wish to ask you, who had it when you saw it?" The answer was, "Mrs. Riedell, grantee." In Chamblee v. Pirkle, 101 Ga. 790 ( 29 S.E. 20), it was said: "A transaction or communication with a deceased person, as used in the section cited, means, we think, some transaction or communication had directly with the deceased, something personal between the surviving and the deceased parties, a transaction or communication of such character that the deceased, if alive, could deny, rebut, or explain the statement of the other party." See also the following cases and the authorities referred to therein: Cato v. Hunt, 112 Ga. 139 ( 37 S.E. 183); Nugent v. Watkins, 129 Ga. 382 ( 58 S.E. 888); Aruold v. Freeman, 181 Ga. 654 ( 183 S.E. 811); Bleckley v. Bleckley, 189 Ga. 47, 57 ( 5 S.E.2d 206). The rejected testimony should have been admitted.
The other special grounds of the motion, relating to the charge have been examined. None of them show any reason for a reversal.
4. Complainant's right to recover depends upon whether or not it was shown that the deed in question was never in fact delivered. The effect of the jury's verdict was to find that there was no delivery. It was recorded subsequently to the death of the grantor and after it was found in what is referred to in the evidence as his strongbox or safe in a room in an apartment occupied by him and not by the grantee. In this box were insurance policies on the identical property, made out in the name of Park, and private papers and jewelry belonging to him and his wife. There was evidence that Park collected rents on this property after the date of the deed, giving rent receipts in his own name. There was testimony that the box or safe had a combination lock to it, and that no one except Park knew the combination. A locksmith was sent for, and in the afternoon after the burial of Park the box was opened and the deed was found therein by one who had formerly been an attorney for Park. This lawyer read it and handed it to the grantee. Both he and the grantee were dead when the suit was tried. The instrument contained a recital that it was "signed, sealed and delivered in the presence of" two witnesses, one of whom was a justice of the peace. The formal execution of the deed and the language of the attestation clause raised a prima facie presumption that the deed was delivered. Dinkins v. Moore, 17 Ga. 62; Highfield v. Phelps, 53 Ga. 59; Ross v. Campbell, 73 Ga. 309; Mays v. Fletcher, 137 Ga. 27, 28 ( 72 S.E. 408); Stinson v. Daniel, 193 Ga. 844, 849 ( 20 S.E.2d 257). Moreover, on that question, there was direct and positive evidence from a witness, J. B. Smith, who was unimpeached, that the grantor manually delivered the deed to the grantee therein and that she accepted it. The material portion of this testimony on the direct examination is set forth in the preceding statement of facts. On cross-examination he stated that he did not have with him the little book on which he recorded the incidents happening to his automobile because the same was stolen, together with some other things, from his car at some time before the trial. On redirect examination he testified: "I had occasion to examine the little book and refresh my memory from the contents of the little book after this suit was filed, at the request of Mrs. Myers; and it is from that refreshment of my recollection after this suit was filed that I have been testifying in this case today." Mrs. Orr, the mother of the complainant, testified as shown in the statement of facts. Comparing the testimony of Smith with that of Mrs. Orr, it will be seen that the former swore that he first saw Park at about four o'clock, and the latter that she talked over the telephone with Park ("who told me he was in Griffin. That is the only way I know, of course") at two o'clock that afternoon.
The fourth headnote is taken verbatim from the opinion of this court in the case of Lankford v. Holton, 187 Ga. 102 (supra). It states a well known principle of law. Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed. Frazier v. Georgia Railroad Banking Co., 108 Ga. 807 ( 33 S.E. 996); Taggart v. Savannah Gas Co., 179 Ga. 181 ( 175 S.E. 491). There is nothing in the record to impeach the witness who testified positively that Park delivered the deed to the grantee, his mother, that she accepted it, and handed it back to him with the request that he lock it in the tin box for safe keeping, giving a reason therefor. The circumstances relied on by the defendant are insufficient to make a jury question as to whether or not the witness Smith swore the truth. The verdict is unsupported by the evidence. It was error to refuse a new trial.
Judgment reversed. All the Justices concur.