Bryan v. Watson

• Decision Date: 30 June 1856
• Docket Number: No. 88.,88.
• Citation: 20 Ga. 480
• Parties: Bryan, plaintiff in error. vs. Watson,administrator of Joseph Nunez, defendant in error.
• Court: Georgia Supreme Court

20 Ga. 480

Bryan, plaintiff in error. vs. Watson, administrator of Joseph Nunez, defendant in error.

No. 88.

Supreme Court of the State of Georgia

JUNE TERM, 1856.

Trover, in Houston Superior Court. Tried before Judge Powers, April Term, 1856.

This was an action of trover, brought by defendant in error as administrator of Joseph Nunez, a free person of color, against plaintiff in error, for the recovery of sundry negro slaves.

On the trial, the plaintiff tendered in evidence his letters of administration, in the usual form; and to the reading of which in evidence, defendant's Counsel objected, upon the ground that the face of the letters showed that the administration was upon the estate of a free white person. Whereas, the declaration alleges that the plaintiff was administrator upon the estate of a free person of color, and that the allegation in the declaration and the proof offered did not correspond; which objection was overruled; to which decision defendant, by his Counsel, excepted.

Plaintiff then tendered in evidence the testimony of Joseph Bush and Mary Rogers, taken by commission, to the reading of so much of which as went to prove that Joseph Nunez was a free person of color, defendant's Counsel objected, upon the ground that it was incompetent to add to, vary or contradict the aforesaid letters of administration by such testimony; which objection was overruled and defendant's Counsel excepted; when said testimony was read to the Jury, as follows: Joseph Bush knows both the parties; Mary Rogers knows Walton, but not Bryan; both witnesses know Joseph Nunez; he died about five years before the taking of their depositions, about 1st January, 1847, near the Savannah river, in Burke County, where he lived at the time of his death; that said Nunez was always regarded a free person of color, and so they believed him to have been; that said Nunez, at his death, had negro property, and that they knew a negro woman by the name of Patience in his possession at and before his death for several years; she was not a very dark negro; between a yellow or mulatto color and dark; she was born, so far as they can recollect, about the year 1822; shehad five children; Sam, the oldest, brown complexion, a boy, and they think, born about the year 1836; Josiah, a boy, two or three years younger than Sam, nearly the same color; Vienna Jeanette, a girl about two years younger than Josiah and of a bright complexion; James, a boy about two years younger than Vienna, and think he was nearly the same color as the boys, but as he was young when they left there, they can not answer particularly as to that; and Melissa, whom they used to call Toady, a girl not weaned, at the death of Joseph Nunez, and about the same color as the others; that at and before the death of Joseph Nunez, the said Patience and her children belonged to the said Nunez; Patience and all her children above mentioned were born in the possession of Joseph Nunez, and were in his possession until his death; said Nunez inherited neither of the above mentioned children, but raised them in his own house; Joseph Bush says that James Nunez, the father of Joseph, owned Nanny (who is now alive and hired by Mary Rogers), the mother of Patience; that James Nunez died about 1809, and at his death left a written will; Nanny went into the possession of Fanny Galphin, sister of the said James Nunez, and while in her possession, had only one child, a boy named Nelson; at the death of Fanny Galphin, about the year 1817, as well as witness recollects, she made a will; the said Nanny was the mother of Patience, and the grandmother of her children above mentioned, who were all born in the possession of Joseph Nunez; Fanny Galphin died about the year 1817 or 1818, but as well as he can recollect, it was in 1817; if not that year, then the beginning of 1818; thinks that Fanny Galphin\'s will was made some time about the year 1812; anyhow, some time before her death. Both witnesses testify that Joseph Nunez raised, in his own house, Patience and her children; Joseph Bush says the mother of Patience, Nanny, was in the possession of Fanny Galphin from the death of James Nunez, in 1809, to her death,-about 1817; Nanny was born in the family of Jim Nunez, and her mother, Patience, was bought by the said James previous to depo-nents coming to Georgia in 1798; that James Nunez paid taxes for said Nanny and her mother, Patience, as far back as Joseph Bush recollects; that deponent, as executor of the will of James Nunez, had the taxes paid for Nanny while she was in the possession of Fanny Galphin.

Both witnesses say that Patience and her children were carried from Burke County by Alexander M. Urquhart, Esq. Joseph Bush says that Seaborn C. Bryant, the defendant, came to his house the last fall (August, September or October, of 1851); and then stated, he, the defendant, had heard "that the negro Patience, whom Alexander M. Urquhart had carried to Houston was dead, but couldn't certify that she was dead"—his words, as near as deponent remembers; and that Patience's two boys were in the possession of Judge Strong; that Urquhart was supposed to have kidnapped the family he brought, but that he had shown papers sufficiently good to satisfy the people that Urquhart had acted badly and had been compelled to sell some of Patience's children, but he, Bryan, didn't say to whom he, Urquhart, had sold them.

Bush says that Nanny came into the hands of Joseph Nunez from the possession of Fanny Galphin. Both witnesses say that Fanny Galphin, who was a free person of color, died in Burke County about the year 1817; that she was a paternal aunt of Joseph Nunez. Both know these facts of their own knowledge. By the word inherit, both witnesses understand the getting of property by the "nighest" blood kin.

James Nunez, they say was also a free person of color; that Joseph Nunez left no children by any lawful wife; the negroes mentioned in answer to the foregoing interrogatories were his children, by Patience, whom he always claimed as his slave; that he had no brother or sister, so far as they know, on the father or mother's side, and that the only relation of his they know of is one Charles Nunez, a free person of color, who was a half brother of father James Nunez; neither witness knows who conducts the suit for plaintiff; both say that so far as they know, Mulford Marsh, Esq., of Savan-nah is the lawyer of Hughes Walton whenever he had any legal business.

Hughes Walton is the only man prosecuting the suit, so far as they know; Mary Rogers says she has in her own possession two of Joseph Nunez's negroes that he gave to her for her lifetime, and that Hughes Walton controls the rest; two of Joseph Bush's daughters—one a daughter, the other a daughter-in-law—present at the giving of these answers; no one has been to see them in behalf of plaintiff; know nothing more that will make in favor of defendant.

Defendant's Counsel objected to so much of the answers of these witnesses as went to show their opinion of the reputation that Nunez was a free person of color; objection overruled and defendant excepted. Defendant's Counsel also objected to any evidence of inheritance, it appearing that Joseph Nunez held under written wills of James Nunez and Fanny Galphin without the production of the wills; which objection was overruled and defendant's Counsel excepted, the Court rejecting all parol testimony as to the contents of a will, and withholding it from the Jury.

Plaintiff then tendered and read in evidence the testimony of Hamilton LochliER, taken by commission, as follows: who deposed he knew plaintiff; had seen defendant; also knew deceased; knew Nunez in his lifetime; has never seen him since he died; he died in Burke County; witness saw him for the last time in said county on the night he is said to have died, some time in the winter of 1846; at the time of his death, he resided in said county; was acquainted with negroes of said deceased at the time of his death; among them was a woman named Patience, who had children; witness has seen her children; one named Sam, a boy about 16 years of age; Josiah, a boy about 15; and there were two or three others—some girls—names not known, all smaller than Sam and Josiah; thinks the third one was a girl; Patience is now about 33 years old, a woman a "little lightish"; they were in Joseph Nunez's possession, and witness supposes they belonged to Joseph Nunez or Nunes (as sometimes spelt); lasthe saw of them was in the city of Augusta; after the death of said Nunez, Alexander H. Urquhart, then of Burke county, took them and removed them from said county some time in the spring (about first of April) after the death of said Nunez; he left, intending to take them, he said, to Alabama, and then on his way, went with them to Augusta.

Patience is worth $500; Sam and Josiah, each $500; can't say as to others; Patience, when witness last saw negroes, was worth about $500; Sam and Josiah, each four hundred; hire of Patience, $60 per annum; Sam and Josiah, each $50; the other three, hardly victuals and clothes, averaging from time witness last saw them until he answered inter'g's (9th Oct. 1851); knew Alexander H. Urquhart; saw him last in Burke County, in the spring of 1847; does not live there now; knows nothing to benefit plaintiff.

Knows of a deed from Nunez to Urquhart for the negroes in dispute; was called on by Nunez and Urquhart to witness a paper, but did not know at the time what it was; Urquhart afterwards told witness it was a deed, and about four weeks before taking witness' testimony he saw it; did not see Nunez sign or seal it; he only acknowledged he had signed it; witness did subscribe it as a witness, and his wife, B. A. Lochlier, also witnessed its execution; Urquhart did take said negroes, claiming them as his own; he did claim the negroes under the deed; knows nothing more in favor of defendant.

Plaintiff then tendered and read in evidence the answers of ...