Ullman v. Brunswick Title Guarantee & Loan Co.

1. The only cases in which person's are incompetent to testify in the courts of this State, as to transactions or communications with deceased persons, are those specified in the act of October 29, 1889, amendatory of section 3854 of the code. Subsection (c) of the act deals with suits instituted or defended by a corporation, and declares that in such cases “the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation and not also with surviving and sane persons, officers or agents of said corporation”; but no provision is made as to cases in which the suit is between a corporation and the representative of a party who has since died, and the testimony sought to be introduced is that of an officer or agent of the corporation as to transactions or communications with such deceased person. That this statute is not to be extended by construction so as to embrace cases not strictly within its letter, is made clear by the act itself, it being declared therein'that “there shall be no other exceptions allowed under this paragraph by any court ” (i. e., exceptions to the general rule of competency laid down in the section amended) “than those herein set forth.” See Woodson v. Jones, 92 Ga. 668, 664.) The court below, therefore, did not err in holding that the witnesses Kay and Crovatt were not incompetent to testify as to transactions with the plaintiff’s testator.

2. Under section 2571 of the code, “among the necessary expeuses of administration, and to be preferred before all other debts,” is the provision for a year’s support for the wife and children of the deceased. That this claim takes precedence of a mortgage has been repeatedly held by this court (see Lathrop v. Brown, 65 Ga. *629312; Cully v. Blooming dale, 68 Ga. 756); and we do not think a pledge stands upon any better footing in this respect than a mortgage. The code declares that the pawnee has “a special property for the purposes of the bailment,” but that “the general property in the goods remains in the pawner.” (§2142.) This is simply declaratory of the common law, under which a pledge is a lien upon property but not a legal title to it. In Jones on Pledges (§§ 7, 8), it is said: “The legal title to property pledged remains in the pledgor . . . It is true Lord Coke has said, that the pledgee has a property in the thing pledged; and again, that he has a property in it, and not a custody only. But he is understood to mean by this, a special property, and not a property in the general sense of the word.” “An agreement whereby certain certificates of stock are delivered as collateral security, with a stipulation that if the debt is not paid at maturity the securities shall be under- the control of the holder, who is authorized to dispose of them and apply the proceeds to the credit of the maker, is a pledge of the stocks. . . . The title remains in the pledgor, with merely an authority to the pledgee to sell in case of default.” Even though there be a formal transfer of title to the stock, the transaction is still a pledge, and as between the parties constitutes merely a lien upon the property. Id. §9. Section 2142 of the code, supra, it is true, declares that “ the death of neither party interferes with their respective interests,” but while this preserves to the pledgee his interest in the pledge, it does not place him upon a higher plane than any other lienholder as against the claim for year’s support.

It follows, that under the facts alleged in the petition the court erred in not granting the injunction prayed for. ' ‘ Judgment reversed.