Bowden v. Achor

• Decision Date: 14 January 1895
• Parties: BOWDEN et al. v. ACHOR.
• Court: Georgia Supreme Court

22 S.E. 254

95 Ga. 243

BOWDEN et al. v. ACHOR.

Supreme Court of Georgia

January 14, 1895

Syllabus by the Court.

1. An equitable petition alleging that the plaintiff had been defrauded of certain described lots of land, or the value thereof, by a series of fraudulent and unnconscionable acts perpetrated upon her by various persons named as defendants the petition setting forth in detail a history of these acts and thereby showing that each and all of the defendants had more or less connection with the same, and in effect charging that the wrongs done her in the premises were the result of a conspiracy among the defendants, in which they all to a greater or less extent participated, and praying for appropriate relief as to each, was not demurrable for multifariousness, or for misjoinder of parties, or for misjoinder of causes of action.

2. One of the alleged grounds of fraud being that the consideration for which the plaintiff had been induced to part with and convey land was grossly inadequate, evidence of the value of the land at the time of the trial, which occurred years after the alleged fraud had been committed, was irrelevant especially where it appeared that all lands in that vicinity had, because of the building of a town, very greatly enhanced in value.

3. It is not admissible for a witness who is not an expert in such matters to testify to his opinion with reference to the mental capacity of another, without stating the facts upon which that opinion is based.

4. It is not only the right, but the duty, of the presiding judge in the trial of an action to ask questions of the witnesses whenever necessary to bring out the full truth of the case but in so doing he should not himself intimate any opinion upon the facts, or use any expression calculated to prejudice the rights of either party.

5. Where it appears that a material paper is outside this state, and therefore beyond the jurisdiction of its courts, a witness may, in the absence of better secondary evidence, be allowed to testify to its contents.

6. The charges being fraud and conspiracy, deeds or other evidence which may throw some light on the transactions under investigation are admissible, the value of the evidence being for the jury to determine. In admitting such evidence, it was not improper for the judge to remark, in substance, that he thought it "applicable," and that, if it had no relation to the question at issue, it would do no harm.

7. The declarations of one in disparagement of the title he had once held to land, made after he had parted with the title, and when he was not in possession, are inadmissible to affect those holding under him.

8. Where, plainly and beyond all controversy, there is one main, controlling issue in a case, the court may inform the jury that such is the fact; but, if there are two or more important issues, and there is any doubt as to which is the main one, or that any one of them is such, the court should not single out a particular issue, and present it as the controlling one in the case.

9. Where the court, in its charge, appropriately recited, by way of hypothesis, various facts illustrative of a want of mental capacity to contract, it was certainly not erroneous, as against the defendants, to add that, if the jury believed such was the plaintiff's mental condition, and if they were thus convinced she did not have sufficient mental capacity to make a contract when she executed certain deeds, the same were not binding upon her.

10. It was error to charge that if the plaintiff, at the time of making certain deeds, had the mental capacity to contract, and there was no change in her mind for the worse when she afterwards made a certain other deed (the latter being a deed which, if binding upon her, would defeat her action,) that deed would be no bar to her recovery. So manifest an error could have resulted only from inadvertence.

11. When the evidence consisted of answers to interrogatories and various documents, as well as the oral testimony of witnesses, the court should not have instructed the jury, "The evidence is what the witnesses swear before you on the stand."

12. Where the court stated to the jury three contentions of a party, it may have been misleading to add that so and so would result if "both of these positions are true," without specifying to which two of them the word "both" applied.

13. When the court has been duly requested to give its entire charge in writing, and the jury, after deliberating a while on the case, ask for additional instructions, which the court undertakes to give, these instructions must also be reduced to writing, and read to the jury. If the court fails to do this, and gives the additional charge orally, it is reversible error. Section 244 of the Code was not repealed by the act providing for the appointment of official court reporters.

14. Where one who has received money in consideration of land sold and conveyed seeks to rescind the sale on the ground of fraud, it is incumbent on the seller, before instituting legal proceedings for that purpose, to return, or offer to return, the consideration received. Even if, in a given case, there should exist equitable reasons for a failure to make restoration, or a tender thereof, which could be held sufficient to dispense with the same as a condition precedent to the right of action, certainly, in a case like the present, where the plaintiff received money for her land, and there is in her declaration no allegation that it was paid or tendered back, nor any offer therein of restoration, or its equivalent, and no evidence whatever either or payment or tender, a recovery by her of the land in question cannot be sustained.

15. Such of the 57 grounds of the motion for a new trial as are not covered by the foregoing notes are not of sufficient importance to require special notice. Many of them are exceedingly trivial; others are entirely without merit. Some of them contain objections to evidence tediously and unnecessarily spun out into lengthy colloquies between court and counsel, when they might easily have been clearly and concisely stated; others relate to alleged improper conduct of counsel in talking irrelevantly, and too much, and the refusal of the court to interfere; and so on almost ad infinitum. It may be that some slight errors were committed which have not been noticed. In so complicated and protracted a trial it would be surprising were it otherwise. On the whole, the controlling questions made by the record have been dealt with, and the rules of law applicable have been announced.

Error from superior court, Clayton county; Richard H. Clark, Judge.

Action by Lou Achor against Robert Bowden and others. Plaintiff had judgment, and defendants bring error. Reversed.

The trial judge may in his discretion examine a witness.

The following is the official report:

The petition of Lou Achor alleged: She is the daughter of Nancy Wright, who, before her death, owned lots 8, 9, and 24 in the Thirteenth district of Clayton county, under deeds recorded October 16, 1886, each deed conveying one of the lots, and each being on a consideration of $2,000. On September 28 1887, Nancy Wright, by will, devised these three lots to petitioner, her only child. On October 18, 1887, two deeds were claimed to have been made by Nancy Wright,--one to J. W. Turner, to lot No. 8, and the other to J. W. Wright, to lot No. 9. The consideration mentioned therein was love and affection, but the grantees were worse than strangers in sympathy for the grantor in her afflictions. These two deeds are forgeries, and were made for the sole purpose of defrauding petitioner. About the time of the making of said two deeds Nancy Wright was in feeble health, and without mental capacity to make a deed. Just after Nancy Wright's death, petitioner was desirous of recovering lots 8 and 9, and acting upon the advice of J. M. Walker, who had gained her confidence, she employed as her counsel S. N. Connally, contracting with him to give him one-half of lots 8 and 9 for his services in recovering the property, and agreeing to sign a deed to one of said lots conveying to him the title thereto. Through the false and fraudulent representations of Walker, who was Connally's agent in the matter, she was induced to sign a deed conveying to Connally lot 24, which was not in litigation in any manner, but was left her free of any incumbrance by her mother. This is a fraud upon her, she being ignorant, and unable to read and write or to understand, what she was signing. She had all confidence in Connally, and relied upon him to protect her from the numerous unscrupulous persons who were doing all in their power to obtain by fraud and violence the property left her by her mother. By this fraud Connally secured, without any contingency, $2,000 for his services in recovering lots 8 and 9, whereas, according to the terms of the contract between them, he was to get a contingent fee of one-half of the recovery. Soon after petitioner employed Connally, he, as her attorney, filed two suits in ejectment to the spring term, 1887, of the superior court of Clayton county against Turner and Wright. During 1888, and before the trial of these cases, she was, by and through the false representations of Walker, who was acting for and by the advice of Connally, and who represented to her that she was about to be convicted and sentenced for larceny in Clayton county, forced, through fear of criminal prosecution to leave that county, and even the state of Georgia. She was never guilty of any crime as she was then charged with, but this was only a trick resorted to by Connally and Walker, who, with J. T. Spence, were in collusion to defraud her of her property, to remove her beyond the...