Bryan v. Walton

Decision Date31 August 1853
Docket NumberNo. 28.,28.
PartiesSeaborn C. Bryan, plaintiff in error . vs. Hugh Walton, adm'r., &c, defendant.
CourtGeorgia Supreme Court

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Trover in Houston Superior Court. Tried before Judge Powers, April Term, 1853.

This was an action brought by Hugh Walton, as administrator of Joseph Nunez, a free person of color, who died without descendants, to recover possession of certain negroes, now in possession of Seaborn C. Bryan; but charged to belong to the estate of said Nunez.

The following points arose upon the testimony in the ease: The plaintiff having served defendant with notice to produce the will of James Nunez, the father of Joseph, under which he claimed title to the negroes of Joseph, the defendant objected to answering, unless the plaintiff would make affidavit that he believed the paper to be, or to have been, in defendant's power, custody or control; which objection the Court overruled; upon which the defendant answered, disclaiming all knowledge of such a paper. The plaintiff then made affidavit, that he had applied to Bush, one of the executors of said will, and was informed that it was in the hands of Janet Reed; on applying to her he traced it into the hands of one George, a lawyer, formerly residing in Burke county, but who had. removed to Florida and there died; and that he had inquired of the Ordinary of Burke county, where James Nunez died, and had made search in his office for the paper, but had been unable to find it. Upon this showing, he proposed to introduce parol evidence of the contents of the will, and offered theinterrogatories of Joseph Bush and Mary Rogers, which was objected to by defendant, on the following grounds, to wit:

1st. Because the loss of said paper had not been sufficiently accounted for, and no sufficient diligence had been shown in the search made for it.

2nd. Because there was no proof of the probate of the will, and it could not convey title to personal property without probate.

3rd. Because, although the paper purports to be over thirty years of age, it must itself be present to establish its presumed proper execution, and probate; and parol testimony of its contents and existence is inadmissible for such a purpose— which objections the Court overruled, and the interrogatories and answers were read. They testified that they knew Joseph Nunez; that he died in Burke county, where he resided, about January 1st, 1847; that he was a free person of color, and that Alexander M. Urquhart was his guardian at the time of his death, and had been for four or five years previously; that they knew the negro property in his possession, which they described; that the negro Nanny, the mother of the others, had belonged to James Nunez, the father of Joseph, who died in 1809, leaving a written will, of which Bush, the witness, and one Alexander Telfair were executors; by which will Nanny and her increase, then without any, were left to Fanny Galphin, the sister of said James, during her life, and at her death to his son Joseph; that Fanny Galphin died in 1812, leaving a will, bequeathing said property to the said Joseph.

To that portion of the testimony which states that Urquhart was the guardian of Joseph Nunez, as well as to the contents of the will of Joseph Nunez and Fanny Galphin, the defendant objected on the ground that there was higher evidence; which objection was overruled by the Court.

The plaintiff having closed, the defendant introduced a deed of gift, of the negroes in dispute, made by Joseph Nunez to Alexander M. Urquhart, dated 20th December, 1846, and a bill of sale, from Urquhart to himself, dated February 18th, 1847. The defendant offered to read to the jury, the answersof Joseph Bush to former interrogatories taken in this case, for the purpose of impeaching his testimony, by showing contradictions between them and his present answers; to which the Court said, you may read them as your evidence and take the consequence; and refused to permit them to be read, for the purpose proposed by defendant.

The testimony and argument being concluded, the defendants counsel requested the Court to charge the jury:

1st. That if they believe from the evidence, that the relation of guardian and ward existed between Urquhart and Joseph Nunez, and that during that relation Nunez made a deed to Urquhart, the guardian for the property in dispute, such deed is not void, but voidable, and only then, if it is shewn to be fraudulent.

2nd. That although they may believe the deed from Nunez to Urquhart is fraudulent, yet, if Seaborn C. Bryan purchased for value and without actual notice of the fraud, his title is valid.

3rd. The character of the consideration paid by Bryan, is all that the jury can take into consideration; with its adequacy they are not concerned; end it will be sufficient, if they are satisfied that Bryan paid a valuable consideration.

4th. That when one of two innocent parties must suffer in consequence of the fraud of a third person, the rule is, that that party, putting it into the power of such person to commit the fraud, must be the sufferer.

5th. The fact that the deed from Nunez to Urquhart does not show that the relation of guardian and ward existed between the parties thereto, is a circumstance that repels any presumption of notice of that relation to Bryan, the purchaser, from Urquhart, and that this presumption of want of notice, upon Bryan's part is strengthened by the fact, that he lived at a considerable distance (if the jury shall believe this fact) from the residence of the said parties, to said deed.

6th. That a free person of color has a right, if he is over the age of twenty-one years, to convey his property.

7th. That in the action, the plaintiff must recover, if at all, upon the strength of his own title, and cannot rely for a recovery upon the defects in the defendant\'s title; that the party in possession is favored in law, and can only be dispossessed by a paramount title.

8th. That if a perfect outstanding title has been shown, this will defeat the action of the plaintiff, and entitle the defendant to a verdict.

9th. That if they believe that Joseph Nunez died, leaving no child or children or representative of such child or children in the right line, then he died without a legal heir, and his property escheated to the State of Georgia, and the Eseheator for the county where he died, should have brought this action; and the administrator having brought it, is not entitled to recover.

To these requests the Court charged as follows: To the

1st Request, the Court charged, that if the jury believe that the deed was made by Nunez, a free person of color, to his guardian, acting for him; and while he was in this capacity the deed was absolutely void, because the Statute of the State itself, made the deed of the free negro void, and all his acts, except they were done by his guardian and so signed, it was obvious, the guardian could not make a deed to himself. Besides, the relation of free negro and guardian, was of a more dependent nature, than that of ordinary Trustees and cestui que trust, and a different rule prevailed. The decision of the Supreme Court was referred to, to show that a deed of this kind was voidable. That decision of the Supreme Court was adverse to a decision of the Supreme Court of U. S., and adverse to what I had believed to be the rule in England and most of the States; nevertheless, their decision was now the law of Georgia; but for the reason above stated, it was perfectly consistent with the ruling here. As to

2nd Request, the Court charged against it; the rule it sought to enforce Was applicable to a class of cases, not like the one before the Court.

3rd. The Court charged the jury, that this was the Law, and if Bryan bought a good title, the inadequacy of the consid-eration was not material, except so gross as to amount to a fraud.

4th. The Court charged this undoubtedly to be the Law, in a proper case made, but if Nunez was incapable like a minor, to convey title, which the Court had decided he was, especially to his guardian, it was impossible to see how he could put it into the power of Urquhart to defraud defendant.

5th. The Court charged, that these matters of fact were for the jury. This, though being a case of title, if Nunez had a good and perfect title, which he had not impaired by his own act or in any other way, he must recover, notwithstanding the good faith and want of notice in Bryan. The doctrine applied to another class of cases.

6th. The Court decided he could, but alone by the intervention and by the act of his guardian and not otherwise.

7th. The Court gave these instructions in charge, as desired to the jury.

8th. The Court gave these instructions, as desired, and said, that if Nunez had not shown a good title in himself, they had nothing to do with the weakness of Bryan's title, and must find for defendant.

9th. The Court charged, that if the jury believed that an administrator of Nunez was regularly before the Court, by appointment, the question of a want of heirs, on the part of Nunez, could not come up in this collateral way; if his property escheated, when the escheator came forward he could be heard. In the opinion of the Court, this was not a defence that could avail defendant here, on this trial, and finally, (among other things not herein complained of,) the Court reminded the jury, that while they had the greatest latitude allowed them in passing on the facts, they were bound to receive and apply the Law as given in charge to them by the Court. That the remark he had made on the trial, that a j ury who would disregard the instructions of the Court, in matters of Law, would commit perjury, might have been thought by them harsh and discourteous to them, the Court did not sointended; but did not, in all courtesy, believe the remark in substance true.

Under this charge, the jury found for plaintiff; and counsel for defendant excepts to said...

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2 books & journal articles
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