DeVane v. DeVane

Hill, J.

(After stating the foregoing facts.)

1. On the trial of the case the cashier of the bank, and its attorney, were permitted to testify over objection that the agreement between J. G. DeVane and J. P. DeVane and the bank was entered into substantially as set out in the foregoing statement of facts. The objection was upon the ground, that, the bank having been made a party plaintiff to the case, and the present suit proceeding against the defendant as administratrix of the deceased husband, the witnesses were not competent to testify under the Civil Code (1910), § 5858. In the brief of counsel for the plaintiff in error it is admitted that this question has been before this court a number of times, and that it has been decided against their contention in the following cases: Ullman v. Brunswick Title etc. Co., 96 Ga. 625 ( 24 S. E. 409 ); Rosser v. Georgia Pacific Ry. Co., 102 Ga. 164 ( 29 S. E. 171 ); Maxwell v. Imperial Fertilizer Co., 103 Ga. 108 ( 29 S. E. 597 ); Holston v. Southern Ry. Co., 116 Ga. 656 ( 43 S. E. 29 ); Cody v. First National Bank, 103 Ga. 789 : ( 30 S. E. 281 ); Florida Central Ry. Co. v. Usina, 111 Ga. 697 ( 36 S. E. 928 ). But, counsel argue, these .decisions are wrong in principle; and they request this court to review and overrule them. In the Ullman case, supra, this court held: “There is nothing in the evidence act of 1889, or the amendments thereto, which excludes a director or other agent of a corporation from testifying as a witness in a case to which the corporation is a party, concerning transactions had between such director or' agent in behalf of the corporation, and a person since deceased whose executor or administrator is the other party to the case.” This ruling, and the rulings in the cases which follow and approve the Ullman case, is .controlling of the question raised in the present record. We have examined that and subsequent cases, and decline to overrule them. The Ullman decision was rendered in 1895, and, so far as we are. aware, has been uniformly followed since that time. Counsel and parties have doubtless acted upon the rule there laid down; and the legislature, which has convened many times since its rendition, has not seen fit to change or abrogate that rule, nor has this court seen fit to overrule the decision.

2. It is insisted that the court erred in appointing a receiver to take charge of the assets of the estate and in granting an injunction against the sale of the assets in the hands of the admin *786 .istratrix. It is argued that the court had no right to interfere with the regular administration of the estate of the deceased, unless mismanagement on the part of the administratrix was alleged and shown. The general rule is that a court of equity will not interfere with the regular administration of an estate by the administrator (Civil Code of 1910, § 4596); but there are exceptions to the rule, and we think that the present case falls -svitliin the exceptions. One of the exceptions is where a person interested in the estate has intervening equities not reached by law, and he is liable to suffer loss unless a court of equity intervenes for his protection. See Moody v. Ellerbie, 36 Ga. 666 ; Howes v. Whipple, 41 Ga. 322; Hill v. Arnold, 79 Ga. 367 ( 4 S. E. 751 ); Perkins v. Keith, 33 Ga. 525; Knight v. Knight, 75 Ga. 386 (3). In the present case it is alleged that the two DeVanes and the Bank of Adel entered into an agreement under the terms of which, as set out in the foregoing statement of facts, J. G. DeVane was to execute to the bank his deed to certain real estate to indemnify J. P. DeVane against loss in case he should have the surety notes to pay; and it is also insisted that the Bank of Adel was a party to this agreement, but that on account of the failure of the attorney of the bank to write the deed before the death of the defendant’s intestate, the deed was not executed. If this is the truth of the matter (and there is evidence in the record to support it), then we think the plaintiff would have such an intervening equity in the property which was to have been conveyed as to be entitled to the relief sought under the. allegations of the petition and the evidence offered in support thereof.

3. One other ground of exception remains to be considered, viz., that the alleged contract was one between’ J. P. DeVane and J. G. DeVane, by which the latter agreed to make the conveyance of the land in question to the Bank of Adel, and that the bank was not a party to the agreement, and therefore that the alleged contract was illegal and void. Under the pleadings and the evidence submitted to the trial judge, we think he was authorized to hold that the contract was entered into between the two DeVanes and the bank. The cashier of the bank testified that the agreement was substantially as alleged by the. plaintiff, and that he instructed the attorney for the bank to execute the deed in accordance with the terms of the agreement. The purpose of the deed was doubt *787 less twofold, to indemnify J. P. DeVane against loss, .and also as additional security to the bank; and this being so, we think that there was ample consideration moving to the bank for entering into the agreement, and further that the same was not void as between the three parties thereto for any reason assigned.

Judgment affirmed.

All the Justices concur.