Everett v. Korizon J. Fornara Tile Co.

Supreme Court of Georgia

Everett v. Korizon J. Fornara Tile Co.

141 S.E. 646, 165 Ga. 651, 1928 Ga. LEXIS 39

CourtSupreme Court of Georgia

DecidedFebruary 14, 1928

DocketNo. 5909

StatusPublished

This text of 141 S.E. 646 (Everett v. Korizon J. Fornara Tile Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Everett v. Korizon J. Fornara Tile Co., 141 S.E. 646, 165 Ga. 651, 1928 Ga. LEXIS 39 (Ga. 1928).

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Opinion

Russell, C. J.

Counsel for the plaintiff in error in his brief states that the claimant at the time of the trial was on lier way from a distant State to tbis State, and that tliis fact was stated by counsel in open court, and that the court ordered the case to proceed. But counsel also states that no written exception -was taken to tbis, and no error is assigned on the ruling of the court: “that counsel makes this statement of fact to account for bis failure to put up his client as a witness.” No error being assigned upon the refusal to postpone the case, no question is raised for decision by this court as to whether the court properly ordered the case to proceed.

On November 12, 1924, Horizon J. Fornara Tile Co., defendant in error, recovered a judgment against A. N. Everett, ami on November 26, 1924, execution was issued, and this was subsequently levied upon a tract of land. As against this levy Mrs. Susie Everett, the wife of A. N. Everett, interposed a claim. The suit upon which the judgment referred to was founded was begun on July 16, 1923. Claimant introduced in evidence a warranty deed from Everett to his wife, the plaintiff in error, dated September 2, 1924, recorded November 8, 1924, the expressed eonsidera[652]*652tion being “love and affection.” This deed conveyed the land described in the levy and to which the claim was filed. After the introduction of the deed just referred to, claimant tendered in evidence another deed from Everett to his wife, dated January 5, 1925, conveying the same land “for a consideration of two thousand dollars;” and this latter deed, immediately after the habendum and tenendum clause, contains the following: “This deed is made to correct the consideration expressed in a deed made by me to said Susie Everett on September 2, 1924, the consideration being in fact and in truth money furnished me by my said wife witli which to pay for said land.” On objection made by plaintiff’s counsel the court refused to admit this dged in evidence, and error is assigned upon this ruling. The court properly refused to admit this deed in evidence. Everett had already, by a deed dated September 2, 1924, conveyed the land in question to his wife. She was not entitled to have the second deed admitted in evidence, conveying the same land and containing the statement that the former deed was really for a valuable consideration and not merely for love and affection. This was mere hearsay evidence; and the fact there recited, if true, should have been proved by competent evidence.

The court did not err in directing a verdict for the plaintiff, as it was demanded by the evidence submitted.

Judgment affirmed.

All the Justices concur. Atkinson and Hiñes, JJ., concur in the result.

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Russell, C. J.

Counsel for the plaintiff in error in his brief states that the claimant at the time of the trial was on lier way from a distant State to tbis State, and that tliis fact was stated by counsel in open court, and that the court ordered the case to proceed. But counsel also states that no written exception -was taken to tbis, and no error is assigned on the ruling of the court: “that counsel makes this statement of fact to account for bis failure to put up his client as a witness.” No error being assigned upon the refusal to postpone the case, no question is raised for decision by this court as to whether the court properly ordered the case to proceed.

On November 12, 1924, Horizon J. Fornara Tile Co., defendant in error, recovered a judgment against A. N. Everett, ami on November 26, 1924, execution was issued, and this was subsequently levied upon a tract of land. As against this levy Mrs. Susie Everett, the wife of A. N. Everett, interposed a claim. The suit upon which the judgment referred to was founded was begun on July 16, 1923. Claimant introduced in evidence a warranty deed from Everett to his wife, the plaintiff in error, dated September 2, 1924, recorded November 8, 1924, the expressed eonsidera[652]*652tion being “love and affection.” This deed conveyed the land described in the levy and to which the claim was filed. After the introduction of the deed just referred to, claimant tendered in evidence another deed from Everett to his wife, dated January 5, 1925, conveying the same land “for a consideration of two thousand dollars;” and this latter deed, immediately after the habendum and tenendum clause, contains the following: “This deed is made to correct the consideration expressed in a deed made by me to said Susie Everett on September 2, 1924, the consideration being in fact and in truth money furnished me by my said wife witli which to pay for said land.” On objection made by plaintiff’s counsel the court refused to admit this dged in evidence, and error is assigned upon this ruling. The court properly refused to admit this deed in evidence. Everett had already, by a deed dated September 2, 1924, conveyed the land in question to his wife. She was not entitled to have the second deed admitted in evidence, conveying the same land and containing the statement that the former deed was really for a valuable consideration and not merely for love and affection. This was mere hearsay evidence; and the fact there recited, if true, should have been proved by competent evidence.

The court did not err in directing a verdict for the plaintiff, as it was demanded by the evidence submitted.

Judgment affirmed.

All the Justices concur. Atkinson and Hiñes, JJ., concur in the result.

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Bluebook (online)

141 S.E. 646, 165 Ga. 651, 1928 Ga. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-v-korizon-j-fornara-tile-co-ga-1928.