Carswell v. Ware

• Decision Date: 31 May 1860
• Citation: 30 Ga. 267
• Parties: CARSWELL. v. WARE et al.
• Court: Georgia Supreme Court

30 Ga. 267

CARSWELL. v. WARE et al.

Supreme Court of the State of Georgia

MAY TERM, 1860.

Claim, in Wilkinson Superior Court. Tried before Judge Hansell, at April Term, 1860.

This was a claim interposed by James M. Ware, a trustee of the children of John M. Ware, to certain negroes levied on by virtue of an execution in favor of John G. Gates, and transferred to Samuel M. Carswell, against John M. Ware, the father of the alleged cestui que trusts. Samuel M. Cars-well dying pending the litigation, Matthew J. Carswell, his administrator, was made a party in his stead.

The fi. fa. was dated nth October, 1855. Transferred for value received by Gates to Samuel Carswell, 19th Dec, 1856. Levied 6th January, 1857, "On the following negroes, to wit: Sarah, John, Nellie, Caroline and Susan, as the property of the defendant, pointed out by E. dimming, Esq."

It was agreed by counsel on both sides, that the other cases pending and involving the same questions as presented in this case be considered at issue, and abide the result of this case, and that the testimony taken by commission in each and all of those cases, be read in this.

The testimony is voluminous, and it is deemed unnecessary to set it out. Suffice it to say, that the plaintiff in support of his right to subject the negroes to the lien of his fi. fa. relied upon the effect of a division made by James Ware of his slaves amongst his children in December, 1854, at which time those in controversy were allotted and assigned to John M. Ware, one of the sons, and contended that upon said division the negroes vested in, and became absolutely the property of said John M., and subject to judgments against him. Claim-ant insisted that although there was a division and allotment of the negroes by James Ware, at the time mentioned, among his children, yet that there was no delivery of the lot intended for John M., and that before there was any delivery vesting title in him, or extinguishing the title of said James Ware, the father, he executed a deed conveying said negroes to the children of said John M. Ware, and constituted James M. Ware trustee for said children, and that such was his intention at the time. The question in this case was, whether there had been such delivery of the slaves to John M. Ware at, and after the division, and before the execution of the deed to the children, which took place a. few days after the division as to vest title in him?

The jury found in favor of the plaintiff in ft. fa., and that the negroes were the property of John M. Ware and subject to the executions against him.

Claimant moved for a new trial on the following grounds: 1st. Because the verdict was contrary to law and the charge of the court.

2d. Because the verdict was decidedly and strongly against the weight of evidence.

3d. Because the court erred in admitting the sayings of James Ware, the father of defendant in fi. fa., and owner of the negroes, as testified to by John G. Gates, which sayings were made after the division, and after the gift of the negroes was alleged to have been made to his son, John M. Ware.

4th. Because the court charged the jury, that there might be a constructive delivery to John M. Ware—that delivery may be actual or constructive.

After argument, the presiding judge sustained the motion, set aside the verdict and ordered a new trial, on the ground that said verdict was decidedly and strongly against the weight of evidence.

To which decision counsel for plaintiff excepted.

Cochran & Cumming, J. R. Cochran & Junius Wing-field, for plaintiff in error.

N. A. Carswell, deGraffenreid & Rutherford, contra.

By the Court.—Lyon, J., delivering the opinion.

James Ware, the father of John M. Ware, the defendant in execution, called his children together one day in the latter part of the year 1854, and made an allotment of his negroes, for the purpose of division and distribution among them. In that appointment, the negroes levied on fell to the share of the defendant. The negroes do not appear to have been present at the time. After the allotment, James Ware, the father, said to John M. that he could send for the negroes whenever it was convenient; he also said at that time, and frequently before,...