
    J. T. Willingham et al., plaintiffs in error, vs. Lydia Smith, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Evidence — Error in Ruling of Court. — It was not error in the Court to rule out as evidence an answer of a witness' taken by interrogatories as follows: “But knows that the general report was that G. K. Smith owned it, (a store house,) and had used it for several years” — nothing else appearing in the answer to show that the “report” did not apply to the using as well as the ownership.
    2. Witnesses — Competency—Death of One Party. — George K. Smith executed a deed to George Hamilton, and afterwards died. Hamilton conveyed the property by deed, after Smith’s death, to-his widow. The property was levied on as Smith’s property, after his death, and sold by the sheriff, by virtue of an execution issued against Smith in his lifetime, and bought by Willingham, who went into possession. Mrs. Smith brought ejectment. The issue was made by the defendant, Willingham, that Smith’s deed to Hamilton, who was his father-in-law, was fraudulent and void. One badge of fraud alleged was continued possession of the property in Smith after making the deed to Hamilton:
    Held, That Mrs. Smith, not being a party to the cause of action, the other party to which was dead, nor the administrator or executor of George K. Smith being a party to the suit pending, she was a competent witness for herself on the trial of the ejectment._
    *3. Same — Possession of Vendor — Fraud.—Where possession in the vendor after the sale was claimed as a badge of fraud, it was competent for a witness to testify that she heard the vendee some time after the sale say to the vendor, “he might have possession of the house free of rent if he would pay taxes and keep up repairs.” Although no reply was proven to have been made to the proposition, the fact that the vendor did continue in possession for several years, entitled the party offering the evidence to have it to go to the jury for what it was worth.
    4. Evidence — Sheriff’s Death — His Entries Admissible. — The entries on the sheriff’s docket, (the sheriff being dead,) _ showing the payment of an execution by the security, are admissible in evidence, it being made to appear that the original executions were lost and the record of the judgment being produced.
    5. Same — Charge to Jury — Case at Bar. — There was no evidence in this case to authorize the Court to give in charge the request as to the deed being a mortgage.
    6. New Trial — Sufficiency of Evidence to Sustain Verdict. — Two verdicts having been rendered for the pláintiff, and there being evidence on which this verdict could have been found, we will not interfere with the refusal- of the Court below to grant a new trial.
    Ejectment. Evidence. Witness. Fraud. Payment. Charge of Court. New trial. Before Judge FIopkins. DeKalb Superior Court. September Term, 1872.
    Lydia Smith brought ejectment against J. T. Willingham and FTamilton & Russell for the “Red Store lot” in the town of Stone Mountain. The record fails to disclose the defendant’s plea.
    The evidence made the following case: On the 22d of May, 1851, George K. Smith, the husband of the plaintiff, conveyed the premises in dispute to George K. Hamilton, her father, in consideration of the payment by the latter of certain debts due by the former.
    On April 2d, 1866, George K. Hamilton conveyed said lot to the plaintiff.
    At the time the deed was executed by Smith to Hamilton, the former was in failing circumstances, but probably had sufficient property to pay his debts. On October 28th, 1862, Kinchen Jenkins obtained a judgment against Smith & Eihudge, of which firm George K. Smith was a partner, for the sum $401 42, principal, besides interest and costs. On the first Tuesday in February, 1869, the property in controversy was sold under the execution based upon the aforesaid * judgment, to J. T. Willingham, and a sheriff’s deed was made accordingly. Before the sale Hamilton handed to the sheriff papers claiming the property for the plaintiff. Fie did not regard them, as he did not think the -securities good. No notice of this fact was given to the plaintiff or to Hamilton. The latter was present at the sale, the former was not. The property brought $505 00, which amount was paid to executions against Smith. After the deed was executed by Smith to Hamilton, the former remained in possession of the property and controlled it as his own. The plaintiff testified that she purchased the lot from her father, in good faith, without notice of any fraud (if there was any,) in the sale from Smith to Hamilton, and paid the full consideration mentioned in the deed.
    The jury returned a verdict for the plaintiff. The defendants moved for a new trial upon the following grounds, to-wit:
    1st. Because the Court erred in ruling out the following portion of an answer of Kinchen Jenkins, a witness for the defendant, made to the first cross-interrogatory, “but knew that the general report was that George K. Smith owned it, (the lot in dispute,) and had used it several years.”
    2d. Because the Court erred in allowing the plaintiff to testify in her own behalf, her husband, George K. Smith, the maker of the deed to Hamilton, being dead.
    3d. Because the Court erred in admitting, over the objection of defendant, the evidence of the plaintiff, as follows: “Some time
    after the making of the deed, she heard her father, George K. Hamilton, tell her husband that he might have possession of the property in dispute, free of rent, if he would pay the taxes and keep it in repair.”
    4th. Because the Court erred in allowing the plaintiff, over the objection of the defendant, to read to the jury as evidence the entries in the sheriff’s docket, showing the receipt of money on three executions against Smith, paid by George K. Hamilton to S. P. Wright, the then deputy sheriff, it appearing *that said sheriff was dead, and the record of writs showing the judgments having been produced. ■
    5th. Because the Court erred in refusing to charge the jury as follows: “If you believe from the evidence that the deed from Smith to Hamilton, notwithstanding it may appear to be an absolute deed, was only intended to secure Hamilton against loss by his paying the debts of Smith; and that the debts were paid out of the proceeds of the property conveyed, then such deed would be a mortgage, and would not vest the title to the property in Hamilton, but would leave the title in Smith.”
    6th. Because the verdict was contrary to the law and the evidence.
    The motion was overruled, and the defendants excepted upon each of the grounds aforesaid.
    Hill & Candler, for plaintiffs in error.
    A. W. Hammond & Son ; T. P. Westmoreland, for the defendant.
    
      
      Witness — Competency—Death of One Party. — Odom v. Gill, 59 Ga. 185, cites with approval the principal case.
      Same — Principal case cited with approval in foot-note to Stotesbury v. Lanier, 42 Ga. 120.
    
   Trippe, Judge.

Upon the face of the answer, it appears that the “report” the witness referred to applied to both the ownership and the possession or use of the store house. It certainly was not competent evidence to prove title by report, nor, indeed, was report admissible to prove the use of the house by'the defendant in the execution. Besides, the use of this house by George K. Smith was proved by .other and legal evidence, and that fact was not disputed.

Section 3798 of the Code excludes a party as a witness for himself, where one of the original parties to the contract or cause of action in issue or on trial is dead, or where an executor or administrator is a party in any suit on a contract of his testator or intestate. It is not pretended that this case falls within the latter clause of this section. Nor can it be properly said that the spirit and meaning of the first clause require *that Mrs. Smith should be held incompetent as a witness, when her testimony does not seek do impose any burden or liability on her husband’s estate. That estate can have no possible interest in the result of this suit. It is a contest between Mrs. Smith and a purchaser of the property under an execution against her husband. The judgment can charge nothing — not even cost on the deceased maker of the deed to Hamilton, nor can it benefit him. The testimony seeks to set up nothing against his act, character or estate, which he, being dead, cannot controvert. And, after all, is not that fact a good test to determine the proper construction of the words of the section quoted, in ascertaining who were intended to come within those exceptions? See Johnson vs. McCombs, decided at this term.

It was objected that the testimony as to what Dr. Hamilton said to Smith, to-wit: that “he might have possession of the house, free of rent, if he would pay the taxes and keep up repairs,” was not competent, because no reply of Smith was proven. But it was in proof that Smith did keep possession after the proposition was made, and as the plaintiff claimed that such possession was a badge of fraud, it was proper that the evidence should go to the jury for what it was worth.

The fourth clause of section 397 of the Code requires sheriffs “to keep an execution docket, wherein they must enter a full description of all executions delivered to them, * * * together with all their acts and doings thereon, and have the same ready for use in any Court of their county;” and section 398 requires these books, after becoming full, to be deposited in the clerk’s office, “to be kept as their other books of record.” It was made to appear that the original executions were lost; that the sheriff who made the entries was dead, and the record of the judgment on which the executions issued was produced. This made the books thus kept, as required by law, the next best evidence in this case. Certainly they were competent, when no other proof could be had.

We do not think there was any evidence to justify the Court in giving in charge the request made by defendant’s *counsel, as to the deed being a mortgage. There was nothing that would have authorized the jury so to find. There have been two verdicts for the plaintiff; the Court refused to disturb this verdict, and we do not feel justified in controlling his discretion, under the evidence in this case.

Judgment affirmed.  