Opinion
14759.
FEBRUARY 8, 1944.
Equitable petition. Before Judge Camp. Laurens superior court. October 7, 1943.
W. A. Dampier, Lester F. Watson, and W. W. Larsen Jr., for plaintiff in error.
R. I. Stephens, contra.
The evidence, though in conflict, authorized the verdict; and as set forth in the opinion, the special grounds complaining of the admission of certain testimony over objection do not authorize the setting aside of the verdict and judgment.
No. 14759. FEBRUARY 8, 1944.
Webb brought a suit in equity against Nobles to cancel two deeds, dated January 11, 1941, conveying two separate parcels of real estate, one recorded in Laurens County on June 9, 1941, and the other recorded in Montgomery County on July 1, 1941, and purporting to convey the realty from the plaintiff to the defendant. The petition alleged that the plaintiff had been confined in jail at Dublin under a peace warrant, and on January 1, 1941, one Adams and another person named Fuqua had put him in a car while in a nervous state and had carried him to Atlanta for hospitalization; that while in Atlanta, Adams procured certain blank deed forms, and by duress and threats to handcuff the plaintiff and turn him back into custody, had required him to sign his name to the blank forms, promising to return them to the plaintiff when the trouble was over; that no part of the deed forms had been filled out and no consideration was paid to the plaintiff; that subsequently the deeds were filled out, the witnesses' names added, and the deeds recorded without the plaintiff's knowledge and without any consideration ever having been paid to him. The plaintiff's testimony supported the allegations of the petition, in addition to which he testified without objection. "After I was released from the hospital in Atlanta, I came back to Dublin, and Mr. Adams and Mr. Nobles (the defendant) carried me to Augusta, and Dock (Adams) tried to hang me up in Lynwood Hospital up there, and they left me in Louisville and told me whatever I did, not to come back to Dublin, that these folks here in Dublin were after me, and would swear to lies to get me in trouble. After they carried me to Augusta, every time I would come in Dublin Dock (that is Adams) would grab me and carry me to Mr. Holland's or Swainsboro, and one time he carried me to Sandersville. That was after I got out of the hospital in Atlanta. It was in February or March when they carried me to Augusta. I asked Mr. Adams on that very trip to let me carry them three deeds that I signed in Atlanta. That was on the trip to Augusta. I don't remember whether I asked him that in the presence of Nobles or not. I don't see why Bob Nobles should have been out of the car. He was in the car with us. When I asked Mr. Adams to let me carry the deeds he said `No, no, I am afraid to let you have them. Somebody will get them away from you and destroy them. I don't want to let you have them.' Time and again he would take them out of his pocket and stretch them out and say. `See they are just like you signed them. I am still your friend. I haven't had these deeds filled out.' I saw these deeds in Mr. Adams' possession after the 15th day of April." The defendant denied the allegations of the petition, and by his plea, supported by his own and other testimony, undertook to show that the deeds were signed by the plaintiff in Dublin in the presence of the witnesses indicated, and that the defendant had then and there paid over to the plaintiff in person and in cash the $1600 named in the two instruments, and that the plaintiff had accepted and retained the same; that the defendant had gone into possession of the land under the deeds, and had remained in possession about six months before any protest or complaint was made. The case has been tried twice, both times resulting in a verdict for the plaintiff, a new trial having been granted in the first instance by the trial judge. On the last trial the judge charged the jury that, "If Nobles has never paid the purchase-money to Webb, the deeds would not be valid, even though you believe from the evidence that the deeds were induced through fraud of which Nobles had no notice or knowledge. If, on the other hand, you believe the deeds were induced by fraud, and Mr. Nobles had no notice or knowledge of the same, the deeds in question would be valid any way, provided he paid the purchase-money." The defendant excepted on the general grounds, and to the admissibility of certain evidence dealt with in the opinion. No exception is taken to the charge. The evidence was in sharp conflict on the question whether or not the consideration had been paid.
1. Under the charge of the court, and as was stated by the defendant's counsel in the progress of the trial, the controlling issue was "whether or not the consideration was paid." On this question the evidence, while in sharp conflict, authorized a finding in the plaintiff's favor.
2. The defendant objected to the plaintiff's evidence and the testimony of Fuqua, a witness for the plaintiff, tending to corroborate the same, as to what took place between the plaintiff and Adams, who the plaintiff claimed coerced him into signing the blank deed form in Atlanta at a time when the defendant was not present. The substance of the objection, as stated by the defendant's counsel, was that "the case boils down to one paragraph in the petition, whether or not the consideration was paid. Issues not authorized by the pleadings should be excluded;" that "the testimony was inflammatory and tended to prejudice defendant's case in the minds of the jury." Thereupon, in overruling the objection, the court stated: "You have to construe this petition as a whole. He sets up fraud as a ground of cancellation or sets up certain fraudulent conduct between Mr. Adams and others preliminary to the execution of this deed and he comes on down with other fraudulent conduct. The only fraud he charges Mr. Nobles with is that he did not pay the consideration, and of course Mr. Nobles, to be bound by anything between Mr. Webb and Mr. Adams, or others, would have to have notice of it; and I rule now in the presence of the jury, and will charge them later fully on the issue, that if Mr. Nobles paid this money he is not bound by any previous conduct of other parties," adding the further statement that the pleadings, which set forth these facts, were not demurred to, and that the court was required to try the issues under the pleadings.
While mere declarations or conduct of third persons not parties to the record or privies in estate are not generally admissible in evidence ( Chastain v. Robinson, 30 Ga. 55 (2); Bailey v. Wood, 24 Ga. 164), where conspiracy is prima facie shown the rule is different ( Wall v. State, 153 Ga. 309 (2), 317, 112 S.E. 142), and conspiracy may be shown by circumstantial as well as by direct evidence ( Mills v. State, 193 Ga. 139 (2), 17 S.E.2d 719; Gossitt v. State, 182 Ga. 535 (2 a, b), 537, 186 S.E. 417; Coleman v. State, 141 Ga. 731 (2 a), 82 S.E. 228; McLeroy v. State, 125 Ga. 240 (2), 54 S.E. 125; Carter v. State, 141 Ga. 308 (1), 80 S.E. 995; Turner v. State, 138 Ga. 808, 812, 76 S.E. 349; Weaver v. State, 135 Ga. 317 (1), 69 S.E. 488). "If sufficient facts to show the conspiracy are alleged, it is immaterial that the word `conspiracy' or `co-conspirator' is not used." 15 C. J. S. 1039, § 25. "It has even been held that when it becomes necessary to prove a conspiracy in order to connect the defendant with the wrong complained of, no averment of the conspiracy need be made in the pleadings to entitle it to be proved." Woodruff v. Hughes, 2 Ga. App. 361, 365 ( 58 S.E. 551). The rule as to this would be different where suit is filed against joint conspirators, in which case conspiracy would have to be alleged, but here the action is against only one defendant. A wide latitude is allowed in cases of fraud, and circumstances and transactions leading up to and surrounding the execution of the instrument attacked, even though inconclusive if separately considered, may by their number and joint operation, be sufficient to constitute proof of fraud in its execution. Rountree v. Lathrop, 69 Ga. 757; Manning v. Manning, 61 Ga. 137 (2); Holbert v. Allred, 24 Ga. App. 728 (2) ( 102 S.E. 192); Carter v. Moody, 160 Ga. 849 (3) ( 129 S.E. 163); Wells v. Blitch, 182 Ga. 826 ( 187 S.E. 86); Waite Phillips Co. v. Sidwell, 120 Okla. 81 ( 250 P. 415). The plaintiff's testimony as to the conversation between one plaintiff and Adams in the presence of the defendant on a subsequent trip to Augusta authorized the inference that the defendant had some knowledge of the transactions between the plaintiff and Adams, and if the defendant subsequently took the fruits of a fraud perpetrated by Adams upon the plaintiff without paying for the property, the jury may have inferred a situation amounting to a conspiracy between them, with the result that the testimony as to Adams's conversation and conduct in furtherance of such conspiracy would be admissible, even though without the presence of the defendant. Accordingly, while the defendant testified that the deed was executed in Dublin in the presence of the signing witnesses, and that the consideration was then and there paid by the defendant to the plaintiff in currency, and while this evidence was corroborated by other witnesses, still this was disputed by the plaintiff, and his contention was to some extent corroborated. Therefore the jury was authorized to find that connivance existed between the defendant and Adams to procure the deeds of plaintiff without payment of the consideration. Under this view, the evidence of the plaintiff seeking to explain how and why he came to sign his name to the instruments, thereby expressly contradicting the evidence of the defendant and other testimony offered in his behalf, became relevant. Moreover, it further appears that the facts which were relied on the show fraud on the part of Adams, and to the admission of which in evidence objection was made, were alleged in the plaintiff's petition without demurrer. In the absence of a demurrer, "as a general rule, either party in every cause should be allowed full opportunity to introduce all evidence competent and relevant to support the case alleged by him." Spivey v. Barwick, 157 Ga. 853 (2) ( 122 S.E. 594). Under the principles indicated, and since the rulings of the court below will be affirmed if correct upon any proper theory ( Glenn Son v. Shearer, 44 Ga. 16 (2)), the judge did not err in refusing to exclude this testimony.
3. The court admitted over objection the evidence of an official of each of the local banks. One of such officials testified that at the time of the alleged payment of the consideration, the defendant had no account in his bank, and the other official testified that the defendant carried a deposit of less than $10. This was offered together with other evidence that no property was returned by defendant for taxation, to prove insolvency and to discredit the reasonableness of the testimony as to payment. In no event could the admission of this testimony constitute a ground for reversal, since the defendant himself testified without protest to the same facts, stating: "At the time I bought these two places, I didn't own any real estate and I didn't have any money in the bank. I didn't return any property for taxes through 1939 and 1941 . . I reckon there was no use to sue me when they knew I was hopelessly insolvent." Hope v. First National Bank, 142 Ga. 310 (2) ( 82 S.E. 929); Hinkle v. Smith, 127 Ga. 437 (4) ( 56 S.E. 464).
Judgment affirmed. All the Justices concur.