Gleaton v. Gleaton

37 Ga. 650

Opinion

Haréis, J.

The defendant, Mary Ann Gleaton, had rented for several successive years a body of land of the plaintiff, and had given, annually, her notes for the rent, until, for the last year of her occupancy, she failed to give her note. Upon the expiration of the year, failing to pay, and holding over, William Gleaton, her landlord, instituted a legal proceeding to obtain possession, when she set up, as an answer to his demand, that the right and title, as also the possession of the-land, was in her deceased husband at the time of his death, and that the plaintiff, having acquired possession of the land deceptively, she had been misled by the artifice of plaintiff, so as to rent the land from him, and into an admission of his right of possession. The principle upon which such a defence to such a proceeding is denied, is too old and familiar to need repeating. If she has been wronged by the plaintiff, the law will furnish her a remedy; but it does not allow a trial of title, as she sought, to be had in a collateral proceeding — a proceeding involving only the right of possession.

By the affidavit interposed by her, and signed as administratrix, the impression seems to have been made upon the Judge below, that the contract of rent had been made with her deceased husband, and, consequently, he excluded Wm. Gleaton, when he offered himself, from testifying, as incompetent, under the Act of 1866, but when, in the progress of the case, it became apparent that the contract of rent had been made with her, it was error in the Court any longer to refuse, as he did, to allow plaintiff to testify. A preliminary investigation, made by the Court, in advance of any decision as to the competency of a party to testify, will be found the effectual preventive- against such errors as those complained of.

Judgment reversed.