Baker v. Lyman

• Decision Date: 31 July 1874
• Citation: 53 Ga. 339
• Parties: Emily R. Baker, plaintiff in error. v. Lydia A. Lyman, executrix, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 339

Emily R. Baker, plaintiff in error. v. Lydia A. Lyman, executrix, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.

) *Claim. Argument. Evidence. Interrogatories. Witness. Debtor and creditor. Fraudulent conveyance. Charge of court. New trial. Before Judge McCutchen. Bartow Superior Court. September Adjourned Term, 1873.

At the September term, 1872, of Bartow superior court, Lydia A. Lyman, as executrix upon the estate of Samuel P. Lyman, deceased, recovered a judgment against Caleb Tompkins for $1,300 00 principal, and $515 80 interest, on a note dated December 27th, 1866, due one year after the date thereof, and payable to the order of plaintiff's testator. The execution based upon this judgment was levied as follows:

"Levied the within fi. fa. on two houses and lots on Stonewall street, in the city of Cartersville, Georgia, one of same occupied by defendant, said lots containing two acres each, more or less; also, one vacant lot on said Stonewall street, opposite the above described premises, containing one acre, more or less; also, one vacant lot lying south of A. F. Morrison's lot, and fronting on Main street, in Cartersville, Georgia, containing one acre, more or less, all levied on as the property of Caleb Tompkins, defendant in execution, this 8th day of October, 1872."

This property was claimed by Emily R. Baker. Upon the trial of the issue thus formed, substantially the following evidence was introduced:

The plaintiff introduced the record of the suit in which the judgment was obtained, the execution with the levy thereon, and proved by John H. Wikle that the defendant had been in possession of the property levied on for about seventeen years; that since the execution of the deed from defendant to claimant, both seemed to occupy the property; that witness did not know who had been in actual possession since the date of the deed, but thinks defendant; that after the defendant had been in possession of the property a few years, claimant came to live with him.

The claimant introduced testimony as follows:

1st. Deed executed by defendant on September 1st, 1869, in* consideration of natural love and affection, conveying to "his niece, " the claimant, various pieces of property, embracing that in dispute, witnessed by W. C. Green and N. D. Lewis. Recorded December 3d, 1870.

2d. N. D. Lewis, who testified as to the execution of the aforesaid instrument at the time it purports to bear date.

3d. The claimant, who testified that said deed was executed when it purports to bear date: that her uncle, the defendant, owned at the time of the execution of the said instrument, and still owns, two thousand eight hundred and eighty acres of landin northern Texas, also seven hundred acres or more, of mining and farming lands in middle Alabama; that she supposes "both are worth upwards of $30,000 00;" that he was fully responsible for all the debts he owed, as they were but few, wholly independent of the property conveyed in said deed; that she does not know the plaintiff who purports to have been the wife of her testator; that testator told witness during his life that he was a widower with one son. That the deed was not made for fraudulent purposes. That the letters from witness to plaintiff\'s testator, (hereafter referred to), in speaking of the note given by defendant to said testator for means to carry on the mining matter here in the south, were not written to defraud him, as he was as deeply interested in that matter as was the defendant. That neither witness nor her uncle seek to swindle any one, but are pursuing their own lawful business, "which is their inalienable right, that every freeman has the right to enjoy without hindrance or molestation." That plaintiff\'s testator himself proposed to witness by letter to have the property deeded to her by defendant.

4th. At this stage of the case the claimant offered the depositions of the defendant, as of an aged and infirm witness. This evidence was objected to on the ground that the defendant resided in the city of Cartersville, within a few hundred yards of the court-house, had been subpoenaed and was able to attend court. Evidence was introduced pro and con as to his physical condition. The court sent a bailiff to notify him *to come in person. This officer reported that he met the defendant coming out of his residence with a letter in his hand; that he notified him that the judge had sent for him to come into court, to which he replied that he was not able to go. That he saw nothing the matter with him. The court then ordered him brought in, and certifies that upon an inspection and personal examination of him, it became satisfied "that he was abundantly able to attend the court and to give his testimony discreetly and quietly." The court then excluded his depositions and claimant excepted.

5th. Caleb Tompkins, the defendant, who testified that he was nearly seventy-four years old, and his health not good; that he has an affection of the heart and is troubled with shortness of breath; that exercise or excitement impairs his memory. That the deed made by him to claimant was executed and witnessed the day it bears date. That he was then, and is still, solvent. That he did not own any other property in Georgia of any consequence at the time of the execution of said instrument, except that embraced therein. That the lot of land in Cherokee county, not covered thereby, is not worth more than $100 00. That plaintiff's testator knew that he owned this property, and was worth $20,000 00 or more. That he knew that this transfer of property to claimant was in contemplation and approved it. That he owned property in other states of the value of $20,000 00.

Plaintiff, in rebuttal, submitted testimony as follows:

1st. Four letters from claimant to plaintiff's testator, all of which were objected to by claimant and objection overruled. The first dated November 29th, 1866. This communication commences by complaining that said testator, in a letter to defendant, had sent no message to the writer, and asserting that she was jealous and disposed to quarrel with him. Refers to their becoming acquainted in Washington city with pleasure. Argues the necessity of the union people of the north assisting those of similar sentiments at the south by loans of money on good security, by purchase of lands for future speculation, by developing the mineral interests, by *sending German emigrants, etc. Refers to the large amount of property owned by defendant at the south, which he is unable to use in any way, as the rebels will not assist an union man, and as General Sherman ordered all the towns burned between Chattanooga and Atlanta, Cartersville included. Asserts that for this reason the defendant has been unable to do anything since his return, being unable to borrow even the small sum of $300 00 at the north, for a few months, until he could build his house. That he has the lumber ready seasoned, but needs just that much to erect it. That when built he will be more than able to pay the person loaning to him, and it will at the same time give him a chance of transacting business for himself. Then proceeds as follows: "So if you have a friend, a married man, that can loan uncle the above named amount, or if even yourself, general, can accommodate him, do so, for I will assure you, on the honor of a lady, that he is very abundantly able to give you all the security you wish, as he has a great deal of" real estate here at the south, and valuable mineral lands, that as you said in your letter, are of great value to him, or, if he should not live, to me, as his only heir, lands that he does not wish to sacrifice now for a song, when, by this little loan, he can do well enough without selling it, until such time as he can develop his mineral lands, and put them on market at his own price, or better, far better perhaps, as you named, to northern capitalists. And if you do not wish to loan it to him, loan it to me, general, \'tis in safe hands and a good investment."

The second dated December 14th, 1867. This letter acknowledges the receipt of favors of the 9th and 11th, instant, states that the defendant has given to the writer "such an old piece of news" to him (plaintiff's testator) his iron mine fifteen miles from Cartersville; that no deed has been made but that defendant will convey it through claimant to any purchaser. Asks testator to sell it for her for $20,000 00 at once. Shows how it is worth that much and proposes various modes of sale. Offers to let himhave $4,000 00 out of the proceeds to pay her present indebtedness to him and the *surplus as a loan. Begs that as he had been unable to raise the $300 00 asked by her, that he will certainly send her $100 "right off." Urges this last proposition with great earnestness and ability.

The third dated June 4th, 1868. The writer complains of having been misunderstood as to her or defendant's owing anything on the latter's property. Says she meant to state simplythat they had some little bills contracted in order to live. Complains of inability to sell property or to collect debts; that there are no laws to do a loyal man justice; that "so soon as these lawful laws get established by our republican governor, R. B. Bullock, and he convenes a lawful and loyal radical legislature, we shall then get justice done us, and we will again have a chance to get what belongs to us." The writer then says that she can see no necessity of mortgaging their property co testator. Asserts in the most solemn manner the certainty that he will receive what is due him; that in any contingency, she and her uncle will have honor enough out of the large amount of property he has, to place enough of it in the hands of some lawyer or friend to secure him. Refers to the watchful care of providence over her and her uncle; urges the testator not to be unmindful of the manifold blessings heaped upon him, etc. The...