Carmichael v. Walters

• Decision Date: 30 June 1862
• Citation: 33 Ga. 316
• Parties: Mary E. Carmichael, plaintiff in error. vs. Jeremiah Walters, defendant in error.
• Court: Georgia Supreme Court

33 Ga. 316

Mary E. Carmichael, plaintiff in error. vs. Jeremiah Walters, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1862.

In Equity, in Dougherty Superior Court. Decision by Judge Allen, at June Term, 1862.

Mary E. Carmichael, the plaintiff in error, filed her bill, stating that at the time of her marriage with her husband, Gilbert C. Carmichael, she was possessed in her own right of certain negro slaves, nine in number, mentioned in the bill, and that some time after the marriage, her husband, in pursuance of a verbal ante-nuptial contract, conveyed by deed to her, for her sole and separate use, the negroes and their increase. The deed was made on the 4th August, 1845, and recorded a few days after in Macon county, the then residence of her husband, he, at the time the bill was filed, being a resident of Savannah. The negroes, from the time of the execution of the deed, together with their increase, twenty-three in all, worth $15,000 00, have remained her property, and they have been so recognized and treated by her husband, he having managed them as her trustee and agent. These negroes constitute all the property of plaintiff, and are the only means of support for herself and children. Her husband is insolvent and without the means of supporting his family.

The bill further states, that her husband being indebted to Jeremiah Walters, the defendant, in the sum of $8,137 00, gave to Walters, on the 19th January, 1861, his note or draft for said sum, payable at some bank in Savannah, on the 23d March, 1862, and that she was directed by her husband on the same day of the date of the note or draft, to sign a paper which she has since learned was a mortgage on thenegroes to secure the payment of the note or draft, and granting to Walters the right to take possession of the negroes at the maturity of the note, and sell them for its payment. The instrument was drawn by Walters\' direction, her husband consenting thereto. When the paper was brought to her residence her husband was quite sick in bed, and on going to his room at his request, she found one Joseph Felt, a Justice of the Peace, present with her husband, the latter having the paper in his hands. A few minutes after she entered the room her husband said, " here, Mary, sign this paper, " and she at once complied, her husband also signing. She was wholly ignorant of the contents of the paper, which were not explained to her, nor was it read in her presence. She is unable to give a copy of this instrument, as it is in defendant\'s possession, and has never been recorded, but prays that a copy be annexed to the answer of defendant.

The bill further alleges, that by the terms of the deed from her husband to herself, the property is not subject to the debts and contracts of her husband, the same being to her sole and separate use, thereby creating a restraint upon the power of alienation of complainant as to the debts of her husband.

The deed is appended as an exhibit to the bill, and the material part is as follows: Gilbert C. Carmichael conveys to complainant, his wife, " for and in consideration of the natural love and affection he has and bears to her, as well as in consideration of the promises and obligations before marriage, for her sole and separate use, " the negroes mentioned in the bill, together with their increase, " all of which belonged to his said wife before marriage. To have and to hold said property to and for her sole and separate and undivided use, benefit and behoof, forever."

Complainant further charges, that Walters is about to foreclose the mortgage for the purpose of levying upon the negroes, or that he will endeavor to take possession of the negroes under the pretended agreement contained in the mortgage, for the purpose of selling them to pay the note of her husband, and thus unlawfully deprive complainant of her property, and herself and children of their support.

The bill states further, that complainant had well hoped that Walters would cease his love of filthy lucre, and not interfere with her rights in the premises, but so it is, he seeks to defraud complainant by pretending that said paper was bona fide taken and given.

The bill prays that Walters be enjoined from interfering with the possession of the negroes, or from levying any fi. fas. issued from the mortgage upon the negroes.

In accordance with the prayer of the bill an injunction was issued restraining the defendant until the further order of the Court.

The defendant replied to the bill by his answer in the nature of a cross-bill, and alleges that in the spring of 1860, some time before the making and execution of the note and mortgage alluded to in complainant's bill, having full confidence in the business capacity and integrity of Gilbert C. Carmichael, the husband of complainant, then doing business as a commission merchant in the city of Savannah, in partnership With one McDuffie, under the firm of Carmichael & McDuffie, he sent to said Carmichael for sale about one hundred and ninety-six bales of cotton, and which was kept unsold in hope of an advancing market until the last of December, 1860, or the first of January, 1861, at which time, defendant wishing to obtain proceeds from the cotton to meet a debt due by him, he wrote to the firm to sell, as he wanted the money, and that on the 3d January the firm wrote defendant, informing him of an offer made for the cotton, but which had not come up to the price asked by them, and which they hoped yet to get. A short time after the receipt of this letter defendant went to Savannah in order to obtain the money, and was informed by Carmichael that the cotton was sold on the day the letter to defendant was written, and it was agreed that defendant should call the next day, when a settlement should be effected. When defendant went to Carmichael's office, according to this agreement, he was told by Carmichael that the cotton had not all been delivered, and that a settlement could not then be had. Defendant remained in Savannah several days waiting upon Carmichael, who, from day to day, deferred a settlement with respondent, assigning various excuses for the delay, at one time telling respondent, who had gone to his office, that his clerk had been called unexpectedly, the night before, to Fort Pulaski, and had told him that the key of the safe was left in a certain place, but that the clerk must be mistaken as he could not find it. During this time Carmichael was busy in a pretended search for the key, and not finding it, declared it impossible to make the settlement then as the papers were all locked up in the safe. At another time, he put off defendant by telling him that the wife of his partner was in a dying state and that he could not attend to business.

These repeated delays excited the suspicion of respondent, which were strengthened by conversation with his friends, and fearing that Carmichael had applied the proceeds of the sales to his own use, and being desirous of obtaining as much of them as he could, defendant, without disclosing his suspicions to Carmichael, told him that he wished at that time only about $3,000 to meet his debt, and that if Carmichael would procure him that amount, a check could be sent to defendant for the balance whenever the papers could be obtained. This Carmichael promised to do, and after some delay actually did do. It soon, however, occurred to defendant that this $3,000 might be the proceeds of the sale of seventy-two other bales of cotton, which he had also sent to Carmichael, and he then concluded not to leave for home as he had intended to do, and as he had informed Carmichael he would do. Carmichael having become apprised that defendant had not left, and doubtless surmising the suspicions of defendant, wrote to him, in pencil, " I went to the depot to see you and learned that you had declined going up the road to-day. As I want to see you, and I am crippled, will you please call at my house this evening? I want to see you on business before you leave, without fail."

Defendant, in compliance with this invitation, went to Carmichael's house, and was then, for the first time, informed by him that he had sold the cotton to Caldwell & Company, but that they refused payment, having a claim against Carmichael for reclamation, but that he could arrange with a friend to get the money that week and would then pay the whole amount to defendant. The fact is, the cotton was not sold to Caldwell & Company but to T. W. Neely & Company, as appears by a copy bill of sales appended to defendant\'s answer and bill, and defendant is informed by two members of the latter firm, and so believes, that they paid to Carmichael the amount of said sales, and that no part of it was retained on account of reclamation or any other liability. Moreover the cotton was sold on the 3d November, 1860, and not on the 3d January, 1861, as stated by Carmichael, and part of it had been sold some three or four months when the letter of Carmichael & McDuffie, dated 3d January, 1861, was written.

Carmichael, having failed to procure the money, promised defendant to execute to him a mortgage on some four or five negroes of his own, saying, at the same time, that complainant would execute, with him, a mortgage to defendant on eighteen or twenty negroes, her own property. At a subsequent interview at Carmichael's house, complainant being present, Carmichael repeated this statement, to which complainant assented, and said, "Yes, I will sign anything Mr. Carmichael wishes me to sign." In the first of these two interviews when Carmichael proposed to have the mortgages executed to defendant, it was understood that respondent was to take possession of the negroes, and carry them with him to Dougherty county, the place of his residence, but that in the second, when complainant was present and gave her consent to executing the mortgage nothing was said about defendant's right to carry off the negroes, but def...