Muller v. Rhuman

1. The record of a former adjudication, founded on a bill to which no-subpoena was attached, and of which no service was made or waiver-thereof had, is not admissible in a subsequent suit between the same-parties or their privies in regard to the same subject-matter. S. Where the contest was over title to realty, and a mistake in the deed from the grantor under which both sides claimed, was alleged by defendants, one of defendants who claimed by purchase under the-others, was an incompetent witness as to the original contract, the grantor being dead, even though he died before defendant became-interested by purchase. S. Parol evidence as to what are the terms of a deed is inadmissible.' 4 Declarations of a grantor after he has sold, and delivered the deed,, are inadmissible to disparage the title of the grantee. 5. Admissions of the then holder of the title, while in possession, as to the nature of his title, may be shown. 6. The admissibility of evidence is for the decision of the court; its - credibility for the jury. 7. To correct a deed by parol evidence of mistake, such mistake must be shown beyond a reasonable doubt.

Evidence. lies adjudicate. Equity. Estates. Before-Judge Hillyee. Eulton Superior Court. April Term, 1878.. Mrs. Anna Rhuman filed her bill against Muller, Breitenbucher and others, to recover certain realty in the city of' Atlanta. She claimed as being next of kin to Peter Oelrich, deceased, under a deed made by Peter Huge, dated Eeb. 10, 1871, by which he conveyed the premises to- “ Catherine Oelrich during her natural life, and at her death to such child or children as she may have by her present husband, Peter Oelrich, and if she should die leaving no-child or children by her present husband surviving her, then the title to vest in her said husband, Peter Oelrich, and if the said Peter Oelrich should die before his said wife, and the said Catherine should die leaving no child or children surviving her, then the title to vest in the next of kin of said Peter Oelrich.” Oelrich died first; Mrs. Oelrich afterwards. They left no children. Complainant is his-sister. Defendants set up that Huge’s deed was made by mistake, and was intended to convey a fee simple title to the premises to Mrs. Oelrich; that being Germans, not familiar with the English language, they did not discover the mistake for some time ; that after Iiuge’s death, Oelrich and wife filed a bill against the administrator of his estate and the two sisters (one having since died) of Oelrich to reform the deed, and a decree was had for that purpose, which renders the matter res adjudieata. The answers pray that if it is not already decided, it may now be so decreed. [Huge’s administrator was not a party to this bill.] Defendants are the heirs of Mrs. Oelrich and a purchaser under them (Breitenbucher), and claim under her. The jury found for complainant. Defendants moved for a new trial on the following, among other grounds : 1. Because the court rejected, when offered in evidence to support the plea in bar, the record of the former suit of Oelrich and wife vs. Huge’s administrator. The bill had no subpoena attached to it; there was an order to serve non-resident parties by publication, and notice was published; there was no regular service of bill and subpoena on anybody, and the administrator came into court only by voluntary answer. There were other irregularities which it is unnecessary to mention.] 2. Because the court held Breitenbucher an incompetent witness to prove that he was present at the trade which resulted in the making of the Huge deed ; that it was agreed that fee simple titles to Mrs. Oelrich should be made, and that drawing the deed otherwise was a mistake. Breitenbucher was one of the defendants who held by purchase from the others. The purchase was subsequent to Huge’s death. 3. Because the. court rejected the evidence of witnesses Woolf, Bass and others to show a mistake in the terms of the deed. 4. Because the court rejected the evidence of witness Bass that Huge, after the making and delivery of the deed to Oelrich and wife, said he had made a mistake in its terms, and promised to correct it by making a new deed to Mrs. ■Oelrich in fee simple. 5. Because the court admitted the evidence of witnesses Rhuman and Finger that Oelrich and wife, while in possession of the land, stated that after the death of Mrs. Oel■rich, it would go to Mrs. Rhuman. 6. Because the finding was too large by half, it appearing that complainant had a sister. [A witness, George Rhuman, testified, without objection, that he was the son of complainant; that she and her sister were the nearest of kin to Oelrich; that his mother wrote to him from Europe that her sister died, and that she died without children.] 7. Because the court charged the jury that they must believe from the evidence, beyond a, reasonable doubt, that the alleged mistake was committed before they would be authorized to find that such mistake was made in the execution of the deed. 8. Because the verdict was contrary to law and the evidence. ' The motion was overruled, and defendants excepted. cited (on the points decided) as follows : Mes adjudieata, Code, §§4185, 2897; 1 KelT/y, 410 ; 3 75., 23 ; 32 Ga., 190. Breitenbucher competent, Code, §3854; 38 Ga., 106 ; 39 lb., 479 ; 44 75., 73 ; 45 75., 25, 147, 416; 60 75., 498, 582. Evidence as to conversations, Code, §§8771, 2657, 3773. Error in charge, Code, §§3117, 3749 ; 7 Ga., 467. 'Cited as follows : Evidence of res adjudicata, Code, §§4183, 4185 ; 4 Ga., 571; 12 I 5., 77; 19 75., 501; 11 75., 328, 431. Breitenbucher incompetent, Code, §3854; 58 Ga., 288, 494; 59 75., 180, and cases cited. Charge right, 'Code, §3117; 11 Ga., 159 ; 29 75., 166; 40 lb., 11; Code, §3124; 12 Ga., 118.