Carter v. Buchannon

• Citation: 3 Ga. 513
• Decision Date: 30 November 1847
• Docket Number: No. 68.,68.
• Parties: John W. Carter, and Wife, plaintiffs in error. vs. George F. Buchannon, defendant in error.
• Court: Supreme Court of Georgia

3 Ga. 513

John W. Carter, and Wife, plaintiffs in error. vs. George F. Buchannon, defendant in error.

No. 68.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1847.

Trover for a slave. Tried before Judge Sayre. In Wilkes Superior Court. September Term, 1847.

Upon the trial below, the plaintiffs attempted to prove "a gift of Jenny, the mother of Jerry the slave in dispute, to Mrs. Carter, when she was quite a child, by her grandfather Jacob Bull.

In the progress of the trial, the plaintiffs proved possession of Jerry in the defendant for several years, and that he purchased him from the administrators of Jones Kendrick, who was the father of Mrs. Carter, and the son-in-law of Jacob Bull. It was further proven that Jerry was the son of Jenny, and was born in the possession of said Kendrick, and continued in his possession until his death, he exercising acts of ownership over him all the time. Jerry's value, and the value of his hire, and some other facts not going to prove title, and therefore immaterial, were proven.

The plaintiffs then tendered in evidence the depositions of William Bull, to prove "that he heard Jacob Bull say he had made εgift of the negro woman Jenny to his grand-daughter, Esther Caroline, " (Mrs. Carter;) and at the same time they also tendered in evidence the depositions of Mildred T. Bull, to prove "that she had heard Jacob Bull, in his life time, and on the evening of the day on which he gave Jenny to his grand-daughter, say, and show how, he made the gift, by placing the hand of the girl Jenny in the hand of his grand-daughter Esther Caroline Kendrick, (now Mrs. Carter,) and tell her that was her negro." These depositions, the plaintiffs insisted, were competent to show a gift from Jacob Bull to his grand-daughter, of Jenny, the mother of the slave in dispute. They were demurred to on the part of the defendant, and rejected by the Court below. To which the counsel for the plaintiffs excepted.

The plaintiffs then proved that Jenny, the mother of Jerry, was originally the property of Jacob Bull; that she was raised and owned by him until she went into the possession of Kendriek; and having proven these additional facts, they again tendered in evidence the said depositions of William and Mildred T. Bull, which were again demurred to and rejected.

To which the plaintiffs excepted; insisting that, having proven that defendant bought from Kendriek, and that he held under Bull, his admissions showing title in them, and therefore out of the defendant, were legal evidence; that said admissions bound him and those who were in privity with him.

The plaintiffs in error then proved by the depositions of the same witnesses, that "on the same day of the gift and delivery of the said girl Jenny to Mrs. Carter, then Miss Kendriek, they all went home together and remained in possession of Jones Kendriek as one family." This testimony was introduced for the purpose of proving the gift. The Court below admitted it for the purpose of showing possession of the negro girl, in Jones Kendrick, but held that it was not good to show a gift to Mrs. Carter. To which the plaintiffs excepted, insisting that as Mrs. Carter was then a child living with the father, his possession was for her use, and the delivery to him was a delivery to her.

The plaintiffs then introduced in evidence the depositions of Judith Young, to the effect "that she saw a gift made by Jacob Bull to Esther Caroline Kendriek, of a negro girl named Jenny. The gift was made in Mr. Kendrick's house in the year 1814.

Jones Kendrick asked Jacob Bull (when he, Kendrick, was going to make a will, a little previous to going into the army) what he would do with a negro girl named Jenny? Mr. Bull told him, said Kendrick, that he could not do anything with Jenny, for he had given her to Esther, his daughter."

This testimony was objected to, and the Court below rejected the first part of it, because the witness had not explained in what way or by what means the gift was made. To which the plaintiffs excepted.

The latter part of this evidence, to wit, the question put by Kendrick to Bull, and his reply, was also rejected by the Court below, because it did not disclose whether Kendrick assented to the statement of Bull, or was silent. To which the plaintiffs excepted.

Upon these several exceptions, the error complained of was assigned.

Andrews & Gartreli., for the plainiffs in error.

A. H. & L. Stephens, and F. H. Cone, for the defendant in error.

Mr. Andrews submitted the following brief of points and authorities:

The possession of Kendriek was the possession of Bull, until the gift was completed. That the declarations proven were a part of the res gestae. That even if the gift were incomplete, it was competent at any time after to confirm it, and make it more manifest to the jury by proving the acknowledgment of plaintiff's title by the donor, unless the defendant, or those under whom he claimed, had in the mean time acquired title from Bull, which such declarations would tend to defeat. That as long as such declarations were against the interest of Bull, they would be competent to be proven by plaintiffs.

The Court erred in excluding Bull's declarations in the presence of Kendrick, on the ground that they did not appear to be uncontradicted by Kendrick, because no answer was required, from the nature of the conversation, from Kendrick. The plaintiffs proposed only, to prove a question by Kendrick, and the answer by Bull.

Authorities cited. 2 Phil. Ev. 257; 1 Johns. R. 140; 1 Kelly R. 595; Dud. R. 72, 75; 2 Phil. Ev. 661, 662; 1 Harper R. 374; 1 Bail. 113, 116; 1 Johns. R. 342; 2 Phil. Ev. 658; Georgia Decisions, part 2nd, 168; 2 McCord Ch. R. 131; 2 Nott & McCord R. 93; 1 Bail. R. 322.

Mr. Cone, for the defendant in error, made the following points:

1. That when slaves pass from the possession of a father-in-law, to a son-in-law, by presumption of law it is a gift from the former to the latter, and therefore the declarations of the father-in-law, after he has parted with the possession of the property, are not competent evidence to defeat the title of the son-in-law. 1 Bay R. 232; 2 Nott & McCord R. 92; 4 McCord R. 228, 251; 1 Hill (S. C.) R. 194; Harper R. 375; 1 Bail. 115; Rice Eq. 174; 1 Stewart R. 24; 6 Ala. R. 259.

2. What is asserted in the presence of a party, and to which he makes no reply, is received as evidence against him; but in order to make such evidence competent, it must be proved as an affirmative fact that the party made no reply, but remained silent. 3 Phil. Ev. 192, and cases there cited; 5 Harris & Johns. R. 117, 119; 14 id. 388, 393.

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

This action of trover for a slave named Jerry, was brought by the plaintiffs in error, Carter and wife, against George F. Buchannon. The plaintiffs attempted to show title by proving the gift to Mrs. Carter, from Jacob Bull, her grand-father, when she was quite a child, of Jenny, the mother of Jerry. In the progress of the trial, the plaintiffs proved possession of Jerry by the defendant for several years; that he purchased him from the administrators of Jones Kendrick, who was the father of Mrs. Carter and the son-in-law of Jacob Bull; that Jerry was the son of Jenny, and was born in the possession of Jones Kendrick and continued in his possession until his death, he exercising acts of ownership over him all the time. The plaintiffs also proved the value of Jerry, and of his hire, and some other facts which are immaterial, as they did not go to make out their title. At this point in the case, the plaintiffs tendered in evidence the depositions of William Bull to prove "that he heard Jacob Bull say he had made a gift of the negro woman Jenny to his grand-daughter, Esther Caroline, " (Mrs. Carter.) At the same time, they tendered in evidence the depositions of Mildrel T. Bull, to prove "that she had heard Jacob Bull inhis life-time, and on the evening of the day on which he gave Jenny to his granddaughter, say and show how he made the gift, by placing the hand of the girl Jenny in the hand of his granddaughter Esther Caroline Kendrick, (now Mrs. Carter,) and tell her that was her negro." These depositions, the plaintiffs insisted, were competent to show a gift from Jacob Bull to his granddaughter, of Jenny, the mother of the slave in question. Being demurred to, they were rejected.

The plaintiffs in error contend that in the rejection of [1.] these depositions, the Court erred, insisting that the sayings of Jacob Bull are legal testimony to prove the gift, and thus make out their title, because they are part of the res gestæ. We dissent from this opinion of the plaintiff's counsel, and hold with the presiding judge. What is meant by the res gestæ? The idea of the res gestæ presupposes a main fact, or principal transaction; for example, the delivery into possession of a slave, might be the main fact in an alleged gift. With this preliminary remark, I answer, that the res gestæ, mean the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. I do not claim that this definition is perfect, for I know that the res gestæ are different in different cases; no definition could be framed so comprehensive as to embrace all cases, hence it is left to the sound discretion of the courts what they shall admit to the jury along with the main fact, as parts of the res gestæ. But perhaps this definition embraces as nearly all that is meant in legal parlance by that phrase, as any other which can be drawn from the books. One peculiarity of the main fact or transaction ought to be noted, and that is, that it is not necessarily limited as to time; it may be a length of time in the action. The time of course depends upon the character of the transaction; it is however, well settled, that the acts of the party, or the facts or circumstances or declarations which are sought to be...