Opinion
14514, 14515.
JUNE 10, 1943.
Ejectment. Before Judge West. Walton superior court. January 2, 1943.
Roberts Roberts, for plaintiffs in error.
J. C. Knox, H. C. Cox, and Morgan Belser, contra.
1. Where the date of the transfer of a fi. fa. was in issue, the plaintiff claiming that it was transferred to him in 1921, and the defendant claiming that the transfer was not executed until 1925; and where a person wrote in 1925 to the plaintiff a letter stating he had bought the fi. fa. for the plaintiff, and shortly thereafter the writer of the letter executed a paper conveying to the plaintiff his half interest in the fi. fa., such letter coming from the files of the plaintiff after his death, and the paper which was produced under notice served on the plaintiff's attorney, were admissible in evidence for the purpose of illustrating whether the execution was transferred in 1921 or in 1925.
2. Testimony of an attorney at law, to the effect that he had searched the records of the city court from which the fi. fa. just referred to was issued, and the records of the superior court of that county, and that he did not find any other fi. fa. in favor of the judgment creditor against the defendant in fi. fa., was admissible in evidence as tending to show that the fi. fa. was the only one held by the plaintiff in fi. fa. against the defendant, and should not have been excluded from evidence on the ground that there was higher and better evidence of what the record might or might not show.
3. The contract and security deed, dealt with in the opinion infra, were admissible in evidence as tending to support the contention by the defendant in fi. fa. that a settlement had been entered into with the original judgment creditor in 1923, and that the fi. fa. was not transferred to the plaintiff in 1921.
4. A letter dated July 1, 1924, from the person who was jointly interested in the fi. fa. in question, and whose name appeared on the notices of levy as one of the attorneys of record on all three of the fi. fas. involved in this case, asking if the defendant in fi. fa. had executed the deed sent to him by the three original judgment creditors in connection with the contract and security deed referred to in the preceding note, was admissible as tending to establish the date of the transfer of the fi. fa. in question, and to show that the execution by the defendant in fi. fa. of a warranty deed conveying other lands, was to be accepted in satisfaction of the three fi. fas., and the notes given with the security deed.
5. Where a letter from a stranger to the suit is offered in evidence, and there is no showing that the party tendering this letter had been referred to the writer of the letter by the opposite party, such letter is inadmissible in evidence.
6. Applying the principles announced above, there were issues of fact which should have been submitted to a jury. The court erred in directing the verdict.
Nos. 14514, 14515. JUNE 10, 1943.
On April 4, 1921, three fi. fas. from the city court of Waycross, one in favor of John W. Bennett, another in favor of the First National Bank of Waycross, and another in favor of the State Bank of Waycross, against the Dean Realty Improvement Company, principal, and John T. Myers accommodation indorser, were levied on two tracts of land in Walton County as property of Myers. Sale of the property was stopped when Myers filed affidavits of illegality which were returned to the city court of Waycross. There was never any trial on this issue. It is undisputed that the fi. fas. in favor of John W. Bennett, and the First National Bank of Waycross were paid and settled. Only the status of the fi. fa. of the State Bank of Waycross is in question here. On November 2, 1926, Long as transferee of that bank's fi. fa., having caused the two tracts of land to be readvertised, became the purchaser at sheriff's sale, and received a deed to the property. At this time the fi. fa. in favor of the State Bank of Waycross for $1243, plus interest and attorneys' fees, contained the following entry: "In and for the consideration of $75.00 in hand paid I hereby assign, sell, and transfer to T. L. Long, the within execution, with all the rights thereunder. This April 15, 1921.
State Bank of Waycross, by L. J. Cooper, President."
Whether or not the transfer was made on the date indicated, or in 1925 and dated back, is a disputed question.
On December 1, 1926, Myers filed in the superior court of Walton County an equitable action against Long and the sheriff, seeking to cancel the above fi. fa., and to set aside the sheriff's deed as a cloud upon his title. He alleged, that the fi. fa. could not be legally levied, for the reason that it had been fully paid off and settled with the State Bank, the original plaintiff, and that Long, the purported transferee, was bound with notice because a deed to the land in question, in payment of this fi. fa., was of record in the office of the clerk of the superior court of Walton County; that the purported transfer on the fi. fa. of the State Bank of Waycross, for a consideration of $75, was fraudulent and void, and the levy and sale in 1926 were made with the intent to defraud the petitioner, while a resident of Florida, without notice; that on March 27, 1923, petitioner, under a contract of settlement with John W. Bennett, the First National Bank of Waycross, and the State Bank of Waycross, made a full and complete settlement of all the fi. fas. in question by executing a contract and security deed; that in pursuance of the contract petitioner executed a deed and notes, and the notes were duly paid off to the attorney of record of the payees, who were the holders of the fi. fas., of which Long had actual and constructive notice. Copies of the contract and of the deed conveying the land involved in this case as security for the debt Myers owed by virtue of the three fi. fas., were attached as exhibits.
Long and the sheriff in a joint answer denied that the fi. fas. had been paid off, and also that the State Bank of Waycross had the right to make the settlement. The answer alleged further, that even though the State Bank had the right to make the settlement, Long was not bound thereby, because at the time of the alleged settlement Long was the owner and holder of the fi. fa. under which the land was sold, which fact was known by Myers; that the transfer of the fi. fa. was not fraudulent as alleged; that the State Bank of Waycross was not the agent of Long, and its action was not his act, and he never ratified the same; that the fi. fa. is not a cloud on Myers' title, because the same has been settled by a sale of the land; and that the deed is not a cloud, for the reason that it is legal.
Myers continued in possession of the land, which was leased to a tenant, W. T. Peters Jr. The case remained in statu quo until about 1929 or 1930, when it was alleged, by W. T. Peters Jr., in his answer to the ejectment suit, that he entered into a contract with all interested parties for a purchase of the property; but that the contract was never carried out, by reason of sickness, death, and disappearance of some of the parties and attorneys. A receiver was appointed in 1931 to take charge of the property. The case remained in this condition until 1941. Peters was in possession of the land. On February 25, 1941, the heirs of Long, who died in 1931, executed a deed conveying the land in question to H. Levy Adcock; and in April, 1941, Adcock filed an ejectment suit for the land in question. In the meantime Myers had disappeared for a period of more than seven years, and an administrator, John S. Dickinson, was appointed.
By consent of the parties the ejectment suit was consolidated with the equitable proceeding, and tried as one case. There was evidence pertaining to the claim of W. T. Peters Jr., that he had a contract of purchase for the land, and evidence of a historical nature as to the conduct and death of parties and attorneys, not necessary to be here related.
The vital issue, determining the merits of both cases, turns on the question whether the fi. fa. in favor of the State Bank of Waycross was in fact transferred to Long in 1921, or in 1925. The transfer on the fi. fa. was dated 1921, but the administrator of Myers claimed that this fi. fa. had been paid in full in 1923, and that the transfer on the fi. fa. to Long was not made until 1925, but was entered on the fi. fa., and dated back to 1921. The court, after hearing evidence, rejected certain correspondence and other evidence offered for the purpose of proving that the transfer of the fi. fa. to Long was fraudulent and dated back so as to make it appear that it was transferred before payment to the State Bank, directed a verdict in favor of Long in the equitable case and another verdict in favor of Adcock in the ejectment suit, and submitted to the jury only the question of mesne profits. Peters, and Dickinson as administrator, filed separate motions for new trial, which were overruled, and they excepted.
1. The fifth ground of the motion for new trial complains that the court erred in excluding from the jury a letter dated March 20, 1925, from F. V. Paradise to Long, which stated in part: "As I wired you, I was successful in buying the [fi. fa.] from Cooper for $75.00. . . The [fi. fa.] with the transfer written on it signed `State Bank of Waycross, by L. J. Cooper, President,' is enclosed to you herewith." After referring to Paradise's half interest in the fi. fa., and giving directions as to how Long should proceed, the letter concluded: "The lawyer we have in Monroe is . ."
The sixth ground complains that the court erred in rejecting from evidence a paper dated May 26, 1925, produced under notice served on Long's attorneys, in which Paradise purported to transfer to Long his half interest in the State Bank fi. fa. This paper also conveyed to Long all of Paradise's interest in other judgments against Myers that they were "interested in jointly."
The notices of levy given in connection with the executions levied on April 4, 1921, including the one in favor of the State Bank of Waycross, showed the name of Paradise as one of the attorneys for plaintiffs in fi. fa. The letter of March 20, 1925, came from the files of Long after his death, and was produced under notice served on his attorneys. The letter and paper had reference to transfer of the same fi. fa., and tended to show that Paradise and Long were jointly interested in the fi. fa., by virtue of which Long caused the sheriff to sell the land in 1926. In the circumstances the letter and paper were admissible as tending to support Myers' contention that the transfer of the fi. fa. in favor of the State Bank of Waycross was fraudulently made to Long in 1925, and dated back, instead of being made in 1921 as shown on the purported transfer. Continental Fertilizer Co. v. Madden, 140 Ga. 39 (2) ( 78 S.E. 460); McClure v. Cochran, 169 Ga. 741 ( 151 S.E. 495).
2. The seventh ground complains that the court erred in refusing to allow one of movants' attorneys to testify, that he searched the records of the city court of Waycross and the minutes of that court and of the superior court of Ware County, the execution dockets of both courts, and the execution dockets of the county; that he found one fi. fa. on record, being the one in evidence in this case; that he did not find any other fi. fa. in favor of the State Bank of Waycross against Myers; and that he found no record of the affidavits of illegality, or any action taken thereon in either court. This testimony was admissible as tending to show that the fi. fa. transferred by L. J. Cooper was the only one held by the State Bank of Waycross against Myers; and it should not have been excluded on the ground that "there is higher and better evidence of what the records from the city court and the superior court of Ware County might or might not show." Greer v. Fergerson, 104 Ga. 552 (2) ( 30 S.E. 943); Martin v. Bank of Leesburg, 137 Ga. 285 (6) ( 73 S.E. 387).
3. The eighth ground complains that the court erred in refusing to admit in evidence a contract and duly recorded security deed to the land in question, which Myers in his equitable petition alleged had been given in settlement of the three fi. fas. levied on his land in 1921. The contract was signed by Myers, and it was alleged to have been fully performed on his part when he gave a security deed conveying the land in question, together with notes, all of which Myers claimed to have paid by deeding certain property in Waycross. Robson v. Weil, 142 Ga. 429 ( 83 S.E. 207). The answer of Long in the equitable case did not specifically deny that such contract and security deed had been given by Myers, but did deny that such settlement would be binding upon him. According to Myers' theory of the equitable case, he gave in 1923 a deed to secure debt together with notes to the three original judgment creditors who held fi. fas. against him, which notes were fully paid in 1924 by executing a warranty deed conveying land in Waycross to the original judgment creditors, the last deed being accepted in full satisfaction of all the fi. fas., the security deed, and the notes, but that one of the fi. fas., namely the one originally held by the State Bank of Waycross, was not delivered to him, but was fraudulently transferred to Long by Paradise in 1925, after the above-mentioned settlement of the three executions, and dated back so as to make the purported transfer of this fi. fa. appear to have been made in 1921 before the settlement. Long proceeded on the theory that he, as transferee, was the lawful holder of the State Bank execution by virtue of an alleged transfer in 1921, and therefore the original holder had no right to enter into a settlement with Myers in 1923, thus making a disputed issue as to whether the transfer was made in 1921 as contended by Long, or in 1925 as contended by Myers. Under the contention of Myers that the purported acquisition of the fi. fa. by Long in 1921 was fraudulent, the contract and recorded security deed were admissible as tending to show the fi. fa. had not been transferred at the time the contract and security deed were executed in 1923, over the objections, (1) that the contract was unilateral; (2) the particular fi. fa. was not identified in the contract; (3) the fi. fa. showed on its face that it was transferred to Long before the alleged settlement of March 27, 1923; and (4) that there was no proper proof of execution of the contract.
As to the forth objection, proof of the execution of the contract was not necessary; and the ruling in Baker v. Massengale, 83 Ga. 137, 142 ( 10 S.E. 347), is not controlling, because in that case the instrument tendered was the basis of the proceeding. In the instant case it was not necessary to produce the subscribing witness, as the evidence was only incidental or collateral to the main issue, and came under the exemption as stated in the Code, § 38-706. See Prescott v. Fletcher, 133 Ga. 404 (3) ( 65 S.E. 877). There was no objection to the admission of the deed, but it was asserted that the deed, standing alone, did not show that it was given to secure the payment of any fi. fa.; and that the contract, although referring to the settlement of "executions," did not specify that the deed was to be given in settlement of this particular fi. fa. While this is true, other evidence was offered, tending to illustrate that the deed and contract were executed in settlement of this fi. fa. The letter from Paradise to Long, and the assignment of the fi. fa. from Paradise to Long, referred to in the first division of this opinion, the letter from Paradise to Bennett, referred to above, and the testimony of one of the attorneys in reference to searching the records at Waycross, referred to above, all were circumstances indicating that this fi. fa. was part of the consideration of the deed. Taken by themselves, neither of these instances was sufficient to establish this fact; but taken as a whole, they furnished sufficient evidence to authorize the admission of the deed and contract, and to permit the jury to say, from such evidence, whether the deed was given in settlement of this fi. fa. The contract was a declaration against his interest, as it admitted his liability under all the fi. fas., and at the time of this trial he was dead, or presumed to be so under the law. The Code, § 38-309, declares: "The declarations and entries by a person, since deceased, against his interest, and not made with a view to pending litigation, shall be admissible in evidence in any case." See Gaines v. Gaines, 39 Ga. 68; Elwell v. New England Mortgage Security Co., 101 Ga. 496 ( 28 S.E. 833); Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297 ( 50 S.E. 92); Turner v. Turner, 123 Ga. 5 (3) ( 50 S.E. 969, 107 Am. St. R. 76).
4. The ninth ground complains that the court erred in rejecting from evidence a letter dated July 1, 1924, from Paradise to John W. Bennett, asking if Myers had executed the deed sent to him by the three original judgment creditors in connection with the contract and security deed referred to in the preceding division, and stating therein that he had the fi. fa. in question at that time. As already indicated, the administrator of Myers claimed that Paradise was jointly interested with Long and transferred his alleged half interest in the State Bank fi. fa. to Long on March 20, 1925, and the notices of levy given in 1921 showed his name as one of the attorneys of record on all three of the fi. fas. The letter was admissible as tending to establish the date of the transfer of the fi. fa., and to show that the execution by Myers of a warranty deed conveying property in Waycross was to be accepted in satisfaction of the security deed, the notes mentioned therein, and the three original fi. fas. Gillen v. Coconut Grove Bank Trust Co., 172 Ga. 908 (2) ( 159 S.E. 282).
5. The tenth ground complains of the refusal to admit in evidence a letter addressed to the attorney for the administrator of Myers, dated December 1, 1926, from John W. Bennett, one of the plaintiffs in fi. fa., and one of the grantees in the deed Myers gave in settlement of the three fi. fas. mentioned in the preceding divisions. In this ground it is certified that this letter was received "in response for information asked for by both sides in the original suit of Myers against Long, and the same letter [was] received by E. W. Roberts, attorney for Long, and Orrin Roberts, attorney for Myers." Without more than is contained in the foregoing statement, the letter was not admissible. The Code, § 38-405 provides: "The admissions by third persons, strangers to the suit, shall be received in evidence: 1. When a party refers another to such third person for information." Nothing contained in the motion shows that the party tendering this evidence had been referred to the writer of the letter by the opposite party.
6. The fourth and eleventh grounds complain that the court erred in directing the verdict. The date of the transfer of the fi. fa. in question was the principal issue involved in this case. A witness testified that the transfer dated April 15, 1921, was not on this fi. fa. on the first Tuesday in May, 1921. This evidence, taken in conjunction with the evidence which was improperly excluded, and referred to under the first, second, third, and fourth divisions of this opinion, was sufficient to have been submitted to a jury for the determination of this question.
As a new trial will be granted, it is not necessary to pass upon the question whether the contract of Peters to purchase the land was too indefinite to be enforced.
Judgments reversed. All the Justices concur.