Chambers v. Others

Citation22 Ga. 131
Decision Date31 March 1857
Docket NumberNo. 35.,35.
PartiesLeonard C. Huff and William Chambers, plaintiffs in error. vs. Charles J. McDonald and others, defendants in error.
CourtSupreme Court of Georgia

In Equity, from Cass Superior Court. Tried before Judge Brown, at September Term, 1856.

The bill alleges that complainant, Charles J. McDonald, on the 2d of May, 1843, purchased at a sale made by the Commissioner in Bankruptcy for the State of Georgia, the one undivided quarter of the southeast half of lot No. 210, in the 2d district of Carroll county, sold as the property of John T. Rowland, a bankrupt. That sometime in the year 1843, he purchased one other undivided fourth part of said south-east half of said lot, from one Littleton Atkinson, but the deed of conveyance from Atkinson to complainant was not executed and delivered until the 8th of October, 1844, at which time he also conveyed and assigned to complainant, all his right, title and interest to all damages for trespasses in digging gold on said lot.

The bill further alleges that in the year 1842, the defendants, Huff and Chambers, entered upon said premises, which contained a valuable gold mine, and engaged extensively in working the same, and continued for sometime their mining operation thereon, and dug up and appropriated to their own use, gold amounting to a very large sum; that they also leased or rented to others the right and privilege of mining on said premises, and received large sums as rent for said right and privilege thus to dig gold; that defendants refuse to account with and pay to complainant the share which is due and coming to him from said mining operations and from said rents as joint owner or tenant in common of said premises; that he has no means of proving the amount, of gold dug, the number of hands engaged, and the expenses of the mining operations, except by resorting to the consciences of the defendants. The bill prays for a discovery and account; that the books kept of their transactions may be produced; and that said defendants or either of them, be de. creed to pay over to complainant the share or amount found due to him from them or either of them upon such account-ing, &c.

The defendants demurred to the bill, for want of equity, and because complainant had adequate remedy at law for the trespasses complained of, and because no assignment of damages for trespasses committed before complainant pur-chased from Atkinson, could give him a right to a recovery, on account of said trespasses; which demurrer was overruled by the Court, and defendants excepted.

And answering they admit that they entered upon said premises about the 1st of Aug,, 1842, and continued thereon until about the 25th Dec., 1843, and did work the mines thereon, and dig up and carry away and appropriate to their own use all the gold found, and they deny complainant's right to any share of the same or to have any account therefor from them; they say that Chambers purchased from one William A. Maxwell, One fourth-part of said south half of said lot, in the year 1842, and obtained from him a bond for titles to the other fourth part of said premises, said bond made by one Benjamin Chapman, but was not assigned in writing to defendant, and under this purchase they entered upon said lot, and engaged in the business of digging gold thereon. They knew that there was other just owners or tenants in common, but they were wholly ignorant of any title or interest of complainant in said premises, and were informed that it was the agreement or understanding of all the owners, that any one could enter upon and dig for gold without liability to the others for rents or otherwise, and with this information and under this belief,, they entered upon said lot and commenced digging, and they did rent to others the privilege of digging. But they deny that they ever obtained a hundred thousand dollars worth of gold, as charged in complainant's bill, or anything like this amount; or two thousand dollars for rent, but they affirm, that after working on said premises until about the 25th of December, 1843, they came to a settlement, and the amount of gold they made on said south half of said lot, after paying and deducting therefrom all the necessary expenses, was about three hundred dollars, and this—without allowing defendant Chambers anything for his services in superintending the business, and if a reasonable sum should be allowed for those services, nothing was made. They are unable to state how much gold was dug, or thenumber of hands they had employed—from whom the negroes were all hired; the prices paid was about ten dollars per month. The books, in which was kept the names of the hands hired, the prices paid and the amount of gold dug, up to the time they quit their operations and made their settlement, has been lost or mislaid, and this was occasioned by the removal of defendants to places distant from their mining operations. They do not admit the tenancy in common with them of complainant—deny his right to receive any part of the gold dug by them, and hold him to a strict proof of his title, &c.

The case coming on to be heard, after the reading of the bill, answer and replication, the complainant offered in evidence,

1st. A grant from the State of Georgia to John Martin, for lot of land No. 210, in the 2d district of Carroll county, dated 17th June, 1830. Then a deed from John Martin to Willis Rabun for the same lot, dated 5th August, 1830. Then a deed from Willis Rabun to John T. Rowland and Littleton Atkinson to south-east half of said lot, dated 28th December, 1838, a deed from Atkinson to Charles J. McDonald to the one undivided fourth part of the said south-east half of said lot, dated the 8th October, 1844, and recorded the 6th April 1847; also a deed from M. Myres, general or official assignee in bankruptcy for the district of Georgia, to Charles J, McDonald, for the undivided one quarter of the south-east half of the same lot, No. 210, sold as the property of John T. Rowland, dated 2d May, 1843. To the introduction of this last deed, counsel for defendants objected, on the ground that no judgment, order or decree authorizing, said sale, had been shown or produced. The Court overruled the objection, and defendant's counsel excepted.

2d. Complainant then offered in evidence the following instrument of writing, viz:

"For value received and in consideration of the sum of three hundred dollars to me in hand paid, the receipt whereof is hereby acknowledged, I, Littleton Atkinson, of the county of Macon and State of Georgia, have bargained, sold, and assigned, and by these presents do bargain, sell and assign to Charles J. McDonald, of the county of Cobb, and said State, all my right, title and interst, both at law and in equity, to damages for trespasses in digging gold on lots of land Nos. 209, 210 and 205, all in the second district of the county of Carroll, with full authority to use may name in the recovery thereof.

In witness whereof I have hereunto set my hand and seal, this eighth day of October, A. D. 1844.

L, ATKINSON, [L. S.]

James L. Green, J. p.

Counsel for defendants objected to the introduction of this paper, on the ground that it only authorized complainant to use the name of Atkinson, and he could maintain no action on it in his own name, and the right to bring suit for a trespass not being assignable, the same was void, which objections were overruled by the Court and the paper admitted and allowed to go to the jury.

3d. Complainant then submitted the following depositions of witnesses examined by commission:

Solomon Morrison.—To the first interrogatory he answers, I know the parties.

To the second interrogatory he answers: I did superintend the digging for gold, for the defendants Huff and Chambers, on the south-east half of lot of land, No. 210, in the 2d district of the county of Carroll, from some time late in the spring of the year 1843, till Christmas thereafter, and from the 1st of January, 1844, as well as I can recollect, the whole year, and from the 1st of January, 1845, until some time in May of the same year. I suppose the average of hands was about 20, rather more than less than that number, they were principally blacks. I superintended about two years on said part of said lot; I suppose the average work of the hands was about a pennyweight to the hand perday during the time of my superintending, and was delivered over to both the defendants and to a Mr. Jarnagin, agent for defendants.

To the third interrogatory, he answers: The defendants did lease out parts of said lot to other persons, Parker Rice, George Bivins, William Bivins and old man Bivins, whose given name I do not remember, and to a Mr. Pettis, whose given name I do not recollect; Rolen Talbot and his son William Talbot, and a great many others I can not recollect. I think they paid the eighth of what they dug up, to defendants, and they did reserve the best digging ground for themselves. I would further state that a man by the name of, Garrison worked also on said lot, with black hands; there were always hands at work on said lot, besides defendants' bands.

To the fourth interrogatory, he answers: I worked the two first years, 1843 and 1844, for both defendants, and the year 1845 for L. C. Huff, as I think defendants dissolved copartnership on the 25th of December, 1844. The work, as before stated, was a penny weight to the hand, which was paid over to defendants during their partnership, after which it was paid over to L. V. Huff.

To the fifth interrogatory, he answers: I do not know of anything more that would benefit the complainant.

Cross Examined.—First interrogatory, he answers: I have stated nothing from heresay or belief—nothing but what comes from my own knowledge and recollection.

Second interrogatory, he answers: The hands-were removed from this lot in 1844, thinking we could do better on another lot, but finding that we could not, we returned on the said lot, 210;...

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