OCTOBER 9, 1950.
Equitable petition. Before Judge Pharr. Fulton Superior Court. May 5, 1950.
Grant, Wiggins, Grizzard Smith, for plaintiffs in error.
Bill A. Shirley, Alton T. Milam, and Gordon A. Smith, contra.
1. "Every fact or circumstance serving to elucidate or throw light upon the issue being tried, constitutes proper evidence in the case." Sample v. Lipscomb, 18 Ga. 687; Walker v. Roberts, 20 Ga. 15; Alexander v. State, 7 Ga. App. 89 ( 66 S.E. 274).
2. The evidence excluded, if believed by the jury, would have authorized a finding that the defendant in error had admitted execution of the deed alleged by him to be a forgery. Code, § 38-403. The testimony excluded contradicted the testimony of the defendant in error as to the execution of the deed.
3. The weight and sufficiency of evidence is solely a matter for the jury, and any relevant testimony which logically tends to prove, or disprove, any material fact at issue in the case should not be excluded from the jury's consideration.
Judgment reversed. All the Justices concur.
No. 17198. OCTOBER 9, 1950.
Robert Marshall filed a petition against his wife, Lucile Marshall, Georgia Savings Bank Trust Company, and James D. Love. He alleged that he was the owner of described land, and sought the cancellation of two deeds appearing of record in the office of the clerk of the superior court, conveying the property described. He further alleged: The first deed, which purported to be a warranty deed from himself to his wife, Lucile Marshall, was a forgery. He did not execute this deed, nor authorize anyone to do so for him. It was without consideration, and he never ratified or condoned the execution thereof. The second deed was a deed to secure debt executed by Lucile Marshall to Georgia Savings Bank Trust Company. His wife, Lucile Marshall, at the time of the filing of the suit, was an inmate of the Georgia State Prison at Reidsville, and James D. Love was in possession of the property, collecting the rents and profits. He prayed for a cancellation of the two deeds, for an accounting against Love, and that the bank be restrained and enjoined from foreclosing on the property pending a determination of the cause. Attached to his petition, as "Exhibit A," was a copy of the warranty deed from Mrs. Louise Fladger to the petitioner, dated June 8, 1936, conveying the property described. Attached as "Exhibit B," was a copy of the alleged warranty deed from the petitioner to his wife, dated December 12, 1947, and, as "Exhibit C," the deed to secure debt from Lucile Marshall to Georgia Savings Bank and Trust Company, dated June 10, 1948, to secure a loan of $1500.
Georgia Savings Bank Trust Company filed an answer in which it denied that the deed from the petitioner to his wife was a forgery; and alleged that it had made an examination of the title to the property, which showed the title to be vested in Lucile Marshall under the deed referred to as "Exhibit B"; and that, relying upon the good faith and representations of Lucile Marshall as to her ownership of the property, it loaned her the sum of $1500. The deed which the petitioner claims to be a forgery was either executed by him or at his direction. He knew that his wife was representing herself to be the owner of the property, that she had previously borrowed money on it, and by his acts and conduct he is estopped to deny the right and title of the bank under the deed executed to it by Lucile Marshall.
Upon the trial of the case, Robert Marshall testified in substance: He did not sign the warranty deed, appearing of record, to his wife, Lucile Marshall. The first notice he had of such deed was shortly prior to the filing of his action for cancellation, and at the time he was filing an action for divorce against his wife. In the preparation of the divorce action his attorney advised him that there was a deed of record purporting to convey the described property to his wife. He was in Birmingham at work at the time of the alleged execution of the deed to his wife.
B. F. Hurt testified: He witnessed the deed as a notary public. Upon receiving a telephone call from Lucile Marshall, requesting that he come to her house and witness the paper, he advised her that he could not go at that time. He understood that Robert Marshall was to sign the paper, and he asked to speak to Robert Marshall over the telephone. He told Marshall to sign the paper and send it to him by the other person who witnessed his signature. In a few minutes J. D. Love brought the deed to him, and upon being assured by Love that Marshall had signed it, he signed it as notary public. Marshall did not sign the paper in his presence, and as to whether or not be knew he was talking to Marshall, he "took it" that he was, because he had been talking to Marshall's wife and told her to let him speak to Marshall.
J. D. Love and Lucile Marshall both testified that Robert Marshall signed the deed in their presence in the house on the premises described in the deed.
An attorney for Robert Marshall testified that he took Marshall to the courthouse on September 18, 1948, and showed him the record of the alleged warranty deed from Marshall to his wife.
Various writings and copies of signatures of Robert Marshall and Lucile Marshall were submitted to the jury. The jury returned a verdict finding that Robert Marshall did not execute the alleged warranty deed to his wife, and that the defendant, J. D. Love, was not indebted to Robert Marshall in any amount.
The motion for new trial of Georgia Savings Bank Trust Company contains the usual general grounds, and one amended ground, assigning error because the court excluded and withheld from the jury, over the demand of the movant, the following testimony of the defendant, Lucile Marshall, given on cross examination, to wit: "I saw my husband sign the deed and afterwards, when I was talking to him about this money, he mentioned the fact that I had the deed to his house, that was in January, 1948. He has told me that I had the deed and he wanted me to go get him some money because he had given me the property; he told me to send him $50 over there and I sent it." The above evidence was excluded on the motion of counsel for the plaintiff, Robert Marshall, on the ground that the alleged deed was dated December 12, 1947, that it "was a complete transaction and anything that followed was not a part of the transaction pertaining to the deed."
The motion for new trial, as amended, was overruled, and the exception here is to that judgment.