Sharp v. Autry , 185 Ga. 160 ( 1937 )

Bell, Justice.

The evidence as admitted, regardless of that excluded, tended to prove the case as laid, and the court therefore erred in ordering a nonsuit. Kelly v. Strouse, 116 Ga. 872 (4, b) (43 S. E. 280); Evans v. Josephine Mills, 119 Ga. 448 (46 S. E. 674).

The first assignment of error on the rejection of evidence was as follows: “The plaintiffs offered in evidence the testimony of Gene Goswick, but the court excluded said evidence. What occurred in connection therewith was as follows: ‘ Mr. Lang: If your honor please, I would like to prove by Mr. Eugene Goswick that Mr. Jim Sharp showed him his deed and told him he had a deed and he claimed it as owner, and he was there in possession.

‘ Court: I ruled on that testimony as to one or two witnesses; it is not admissible, because the deed was the highest and best evidence, and the deed has not been accounted for.

‘Mr. Lang: I think the record shows that I proposed to show by Mr. Goswick yesterday that he saw this deed and had it in his hand and read it over, and that it was a deed signed by Mrs. S. E. Sharp, conveying this property to Mr. Jim Sharp. I think your honor excluded the evidence, but I wanted to prove that he saw, her name had beén signed to it, and that it was witnessed as a deed, and conveyed this property, and that she later told him she had deeded that farm to her son, Jim.

‘ Court: Those questions are not before me at the present time.

‘Mr. Lang: I propose to prove that by Mr. Eugene Gos-wick. . .

‘ Court: I don’t think there is any evidence of any execution of the paper. All right, what next ?

‘Mr. Lang: I want to offer a little other evidence. Call Mr. Goswick. Your honor holds we can’t go into secondary evidence as to this deed ?

‘Court: Yes.’”

While it is true that secondary evidence as to the contents of an alleged lost or destroyed deed should not be admitted until it is shown that a duly executed original once existed (Code, § 38-214; Calhoun v. Calhoun, 81 Ga. 91, 6 S. E. 913; Garbutt Lumber Co. v. Gress Lumber Co., 111 Ga. 821, 35 S. E. 686), yet “where no direct evidence of the execution of a written instrument is attainable, its execution may be proved by circumstances.” Proctor & Gamble Co. v. Blakely Oil & Fertilizer Co., 128 Ga. 606 (3) (57 S. E. 879). “When a deed has been lost, and the subscribing witnesses are unknown, proof of its existence and due execution may be made by any witness who knows the facts.” Turner v. Cates, 90 Ga. 731(4) (16 S. E. 971). “In order to admit secondary evidence, it shall appear that the primary evidence, for some sufficient cause, is not accessible to the diligence of the party. This showing shall be made to the court, who shall hear the party himself on the question of diligence and the inaccessibility of the primary evidence.” Code, § 38-212. Under these principles, the court erred in excluding the proffered evidence as to the execution and contents of the alleged lost or destroyed deed. See, in this connection, Hawes v. Paul, 41 Ga. 609; Blalock v. Miland, 87 Ga. 573 (3) (13 S. E. 551); Sigman v. Adams, 151 Ga. 88 (106 S. E. 82). The court also erred, as contended in the same assignment of error, in excluding the evidence of a declaration by the alleged grantee (the plaintiffs’ father) while in possession of the land, indicating that he claimed the land as owner. While this declaration was not admissible to establish ownership (Dozier v. McWhorter, 117 Ga. 786 (4), 45 S. E. 61; Rucker v. Rucker, 136 Ga. 830, 72 S. E. 241; Causey v. White, 143 Ga. 7 (7), 84 S. E. 58), it was relevant as explaining the character of the declarant’s possession, and as constituting a circumstance to be considered by the jury. Brown v. Cantrell, 62 Ga. 257; Wallace v. Mize, 153 Ga. 374 (6) (112 S. E. 724); Blount v. Dunlap, 34 Ga. App. 666 (2) (130 S. E. 693).

The other assignments of error on the rejection of evidence related to similar declarations by the alleged grantee, but these declarations were not shown to have been made while the declarant was in possession of the property, and for this reason the court did not err in excluding the evidence. Smith v. Smith, 141 Ga. 629 (10) (81 S. E. 895).

Judgment reversed.

All the Justices concur.