I concede, of course, that if the purported bill of sale to Geraldine Pierce was genuine it passed title to her without any recordation, and that if she became the legal holder of the title to the automobile she could convey title to Mary Calhoun as security for a loan. However, I am of the opinion that, for reasons stated below, the judge was fully authorized to discredit the witnesses for the defendant in trover and the intervenors, and to find that neither the purported "agreement and will" nor the bill of sale from J. B. Long, the deceased husband of the plaintiff in trover, was ever executed by him. Of course the so-called "agreement and will" alleged to have been *Page 429 executed by J. B. Long was insufficient to convey to Geraldine Pierce the title to the automobile here involved. It lacks the essentials of a properly executed and witnessed will, and fails also as a bill of sale, for the reason that it did not purport to pass title in praesenti to Geraldine Pierce. In fact it is not now relied on by the plaintiffs in error as a muniment of title. It was, however, introduced in evidence, and, as hereinafter shown, is of importance in the consideration of the testimony of witnesses for the defendant and the two intervenors. It is contended by the plaintiffs in error that the witnesses produced by them testified to the execution of the "agreement and will" and the bill of sale from Long to Geraldine Pierce, and that they were unimpeached; and that as no circumstantial evidence in the case is inconsistent therewith, such testimony can not be disregarded, and is conclusive on the question of her having acquired title to the automobile which it is alleged she subsequently conveyed to Mary Calhoun as security for a loan. Let the record now be examined.
If Geraldine Pierce in good faith relied on the alleged bill of sale of July 29, 1939, why did she not put it on record just as she did the "agreement and will" upon which she does not now predicate any claim of title? If, as she contends, the "agreement and will," though recognized as insufficient as a will or as an in praesenti transfer of title to the automobile in question, was executed and witnessed by several, including Ada McDay, the defendant in trover, as a notary public, why did she instruct Lillian Hampton, her sister, to inquire of a notary public in the office of counsel for the plaintiff in the bail-trover proceeding, after the death of Long, if she, the notary public would witness a will in her official capacity? She does not dispute the testimony of her sister in this respect; and although the latter stated, when recalled to the stand, that she did not have any paper before her, and that it was in the possession of Geraldine Pierce, there was no offer on the part of Geraldine Pierce to show that she was interested in having a notary public attest any will other than the purported one from Long. Furthermore, it was testified by Lillian Hampton that the paper she had in mind was the "agreement and will," and that she later saw it and found that no signature of a notary public was necessary, and advised the notary public she had inquired of that she could forget about the matter. She had been informed that this *Page 430 notary public would attest the signatures of the subscribing witnesses, and she had stated that she would bring them before her on the following morning, but she failed to do so. Nevertheless the instrument, as offered in evidence, shows a purported attestation by another notary public, the defendant in the bail-trover action, as to all of the signatures on the document. The question naturally arises: After R. E. Pruden, the notary public in the office of counsel for the plaintiff, had expressed an unwillingness to attest the signature of a dead man, and the person delegated by Geraldine Pierce, her sister, had stated that she would bring the subscribing witnesses before this notary public, but failed to do so, would not the fact that the name of another notary public, who is the defendant in the bail-trover action, now appears as attesting the signatures of Long and the subscribing witnesses authorize the conclusion that these signatures were not on the paper before the death of Long? I think that the trial judge, having the opportunity to observe the witnesses and their demeanor on the stand, was authorized to so conclude. They testified, it is true, that they saw Long sign the paper, after stating his reasons for wishing to execute it; and it is contended by the plaintiffs in error that they were not impeached and can not be discredited. But "The rule that the uncontradicted testimony of unimpeached witnesses can not lawfully be arbitrarily disregarded `does not mean that the jury are obliged to believe testimony which under the facts and circumstances disclosed they in fact discredit, but means that they are to consider the testimony of every witness who is sworn, and not arbitrarily disregard the testimony of any witness.'"Fincher v. Harlow, 56 Ga. App. 578 (193 S.E. 452);McRae v. Wilby, 59 Ga. App. 401, 410 (1 S.E.2d 77);Caldwell v. Caldwell, 59 Ga. App. 637, 643 (1 S.E.2d 764). A fact can be proved by circumstantial evidence as well as by direct proof, and physical facts and circumstances may be sufficient to authorize the jury to disbelieve the witnesses of a party and to thereby impeach them. Atlantic Birmingham RailwayCo. v. Clute, 3 Ga. App. 508 (60 S.E. 277); EmoryUniversity v. Bliss, 35 Ga. App. 752 (134 S.E. 637);Central of Georgia Ry. Co. v. Grace, 46 Ga. App. 101,102 (166 S.E. 684). "Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite *Page 431 uncontradicted evidence in regard thereto." Cooper v.Lumbermen's Mutual Casualty Co., 179 Ga. 256, 261 (175 S.E. 577). The alleged subscribing witnesses testified that all of the persons whose names appear on the instrument were actually present, not excepting Ada McDay, the defendant in the trover action and the purported attesting notary public, but if, as the trial judge might conclude for reasons above shown, that her attestation was not made before the death of Long, it would necessarily follow that the testimony of these witnesses that she was present and signed with the others was false, and if they testified falsely in that respect the judge was also authorized to find that their testimony was likewise false in respect to having witnessed Long's purported signature. It is significant that two of the alleged witnesses to this instrument, Sarah White and Rosa Belle Jackson, were shown as witnesses to the purported bill of sale of July 29, 1939; and if, for reasons above shown, the judge was authorized to discredit them in respect to the "agreement and will," he was further authorized to reject as untrue their testimony in regard to witnessing the alleged execution of the bill of sale by Long under date of July 29, 1939. Obviously if Geraldine Pierce received no bona fide bill of sale from Long, she had no title to convey to Mary Calhoun, as she claims it only from that source, and the judge was authorized to find against the contentions of the two intervenors. It was stipulated between the parties that unless the title to the automobile, the subject-matter of the trover suit, had been transferred to Geraldine Pierce before his death the ownership was in Long. The judge being authorized to find that she never received any bona fide transfer of title, the property, under such stipulation, must be considered as belonging to Long at the time of his death; and having been admittedly set apart as a year's support for his widow, the present bail-trover action was properly maintainable by her. There being evidence that the automobile was worth not less than $400, and the plaintiff having elected to take a money verdict, the judgment rendered by the trial judge in her favor for $250 was fully authorized.
In holding that the judge was authorized to find that the "agreement and will" and alleged bill of sale from Long to Geraldine Pierce were spurious and fraudulent, I am not unmindful of the fact that she testified that she was present at the time of the execution *Page 432 of the "agreement and will" and the bill of sale, and that Ada McDay testified that she was present at the execution of the "agreement and will" and attested the signatures thereon. However, it was shown that Geraldine Pierce had been living with Long, a married man, several years before he became ill from tuberculosis, and that Ada McDay, the defendant in the trover action, was the daughter of Mary Calhoun, claimant, and had been convicted of a lottery. In these circumstances, and having the witnesses before him and observing their demeanor on the stand, he was not obliged to believe them, especially as they both were interested in the outcome of the suit.