Dawson v. Callaway

• Decision Date: 31 August 1855
• Docket Number: No. 84.,84.
• Citation: 18 Ga. 573
• Parties: Edward J. Dawson, plaintiff in error. vs. James Callaway, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 573

Edward J. Dawson, plaintiff in error. vs. James Callaway, defendant in error.

No. 84.

Supreme Court of the State of Georgia

AUGUST TERM, 1855.

Trover, in Meriwether Superior Court. Tried before Judge Bull, February Term, 1855.

This was an action of trover, brought by Edward J. Dawson against James Callaway, for the recovery of four negroes —Patsey and her three children.

The defendant pleaded the general issue and Statute of Limitations.

On the trial, the plaintiff proposed to read the evidence of David Dawson, taken by commission. The interrogatories were filed in Court, in August, 1851, and the trial was had in February, 1855. No objection having been filed, the defendant objected to the evidence, because the commissioners did not, at the foot of the answers of the witness, say: " Answered, subscribed and sworn to before us." The usual certificate preceded the answers, in which it was stated that the witness " had answered, after being duly sworn, " &c. The Court sustained the objection, and plaintiff excepted.

The facts of this case, as appeared from the evidence, were as follows: On the 17th of March, 1815, Jesse Coe executed a bill of sale to Susannah Watts, for a negro girl, Charity, (the mother of Patsey,) the consideration being $375.

At the time, Susannah Watts and her brother John Watts, and Milly Watts, were living together, and continued to do so, and exercise acts of ownership over the negro girl, Charity, until, according to the statement of one witness, the year 1821, and according to another witness, until the year 1827. The Watts' family then separated, and the negro, Charity, was left in the possession of John Watts. In 1839, John Watts died in the County of Meriwether, in possession of the negroes. There was no administration upon his estate. The negroes went into the possession of his widow, who kept them until 1845, when she died, and the negroes went into the possession of her daughter, the wife of the defendant, who had them in possession at the time of their intermarriage. Mrs. Callaway was of age at the time of the death of her mother.

The plaintiff then read the evidence of George Watts, to prove the execution of the bill of sale from Jesse Coe to Susannah Watts, as follows: " I did sign the said bill of sale, as an at-testing witness. I saw Jesse Coe execute said bill of sale to Susannah Watts, (as I supposed,) for the purposes therein mentioned."

To the cross-interrogatories, the witness stated—" my reasons about the purchase money is this: I believe John Watts counted the money down, (for Charity)—don't know whose money it was, nor do I know when carried to the place. It was and is my opinion, that if Susannah Watts had the money, she must have got it from John Watts."

To which plaintiff objected; the Court over-ruled the objection and plaintiff excepted.

Plaintiff then proposed to read in evidence the bill of sale, to which defendant objected, " because the witness did not say ho was present at the time of its execution, and did not say he saw it signed, sealed and delivered; and that the name of George Watts plainly appeared to be signed with different ink from that of the other witnesses."

The Court sustained the objection, and plaintiff excepted.

Plaintiff then proposed to read in evidence so much of the depositions taken by the defendant for the same witness, as showed that he was present at the execution of the bill of sale. The defendant insisted that plaintiff could not read a portion without reading all of the answers of the witness. The Court so ruled, and plaintiff excepted.

Plaintiff then proceeded to read said depositions—objecting to the following portions, in which the witness stated: " I do not know, but think John Watts counted the money to Coe, for the negro Charity. I was acquainted with the means and circumstances of Susannah Watts at that time. If she had the means to buy negroes, I think she obtained it through John Watts." " John Watts had the means to buy negroes, unless he had previously transferred them to Susannah Watts. I know of no other reason to induce John Watts to have the bill of sale for Charity made to Susannah Watts, than that he feared he might be involved by his wife, who had left him. I do not know, positively, but think that John Watts had paid over the amount of the purchase money for the negroes."

The plaintiff objected to this portion of the evidence, as above stated. The Court over-ruled the objection, and plaintiff excepted.

Plaintiff then read in evidence the depositions of Benjamin and Milly Dawson—the following portions of which were objected to by the defendant and ruled out by the Court, and plaintiff excepted: " After the negro was brought home, Susannah Watts claimed the negro." " During their stay in Hall, Susannah Watts made a deed of gift of Charity to John Watts' oldest daughter, Susannah." " Susannah Watts heard, in the Spring of 1849, that John Watts was dead, and his family in Meriwether County." " He (Benj. Dawson) wrote letters, at various times, to people in Hall and Jasper Counties, to know where John Watts had gone, but never heard any thing from him." He further says: " in the Spring of 1849, Thomas Bloodworth, brother-in-law of his, wrote him from Columbus, or near there, that John Watts had returned to Georgia, and his family and the negroes were in Meriwether County;" and this was the first time Susannah Watts had heard of him since he left Hall. This latter portion, not in brackets, was not objected to.

Plaintiff then read in evidence a deed of gift from Susannah Watts to the plaintiff, for the negroes, Patsey and her children, dated on the 25th day of July, 1849.

Plaintiff then introduced the defendant, to prove the existence and value of a child, born since the commencement of the suit, which he did.

Defendant's Counsel then proposed to examine the defence on the merits of the case not touched upon by the direct examination. Plaintiff objected. The Court over-ruled the objection, and plaintiff excepted.

The Court charged the Jury as follows:

That no administration on the estate of John Watts or his widow, was shown; the possession of John Watts and his widow, and afterwards of his daughter, were seperate and independent possessions. That, therefore, if John Wattswas the bailee of Susannah Watts, though the Statute of Limitations did not begin to run in his favor until he proved knowledge of the conversion to Susannah Watts; or if he had fraudulently concealed the property, the Statute could not run until a discovery of the fraud; yet, that these rules did not apply to the possession of his widow—that her possession being a separate one, could not be affected by his fraud, or bailment, or contract; and that if the Jury should believe that the widow of John Watts held the property adversely, four years after the death of John Watts, using it as her own, and converting it to her use, then she had a good title to it, unless she had fraudulently concealed it from Susannah Watts; and this defendant could plead this outstanding title by the Statute in Mrs. Watts, in bar of this action, though he might not claim under her, nor tack her possession to his to create a bar by the Statute of Limitations. And to this charge plaintiff excepts.

Further—that the possession of Miss Watts was separate from that of her father and mother; and she would not be affected by the character of their possessions or their frauds. And that though she held the property as a trespasser, yet, that on her marriage with defendant, her possession became his possession—that their possessions were one; and if more than four years had elapsed from the commencement of the possession of Miss Watts to the bringing of the suit, that the plaintiff was barred and they must find for the defendant. And to this charge plaintiff excepts.

The plaintiff's Counsel asked the Court, in writing, to charge the Jury, " that if the possession of defendant is a possession through John Watts, or under him, he is in no better condition that John Watts." The Court refused, absolutely, to give this charge, remarking, " there was not a scintilla of evidence to support it; that there was no evidence that defendant received the property by descent;" and to this refusal plaintiff excepts.

The plaintiff's Counsel asked the Court, in writing, to chargethe Jury, " That possession, to mature a title under the Statute of Limitations, must be adverse and continuous, and continuously adverse; and that if the possessions of Mrs. Watts and Miss Watts, and defendant, are separate possessions, the defendant can claim no benefit from any possession prior to his own." The Court gave this charge with a qualification, to-wit: that if Mrs. Watts held the property more than four years, and had a statutory title, the defendant could plead it in bar of this action, though he did not claim under Mrs. Watts. And to this refusal and qualification, the plaintiff excepts.

B. H. Hill, for plaintiff in error.

Dougherty; Warner; Moore; Hall, for defendant.

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

It appears, upon the face of the return of the commissioners to examine David Dawson, that David Dawson signed the depositions returned.

It is very doubtful, therefore, whether enough does not appear upon the face of that return to show the commission to have been well executed—very doubtful whether enough does not appear upon the face of the return, to show that the depositions were, in fact, " answered, subscribed and sworn to" before the commissioners, by the witness. I, myself, am very much disposed to think that there does appear enough to show that.

And then, the interrogatories had lain in office for more than three years. And the 47th rule of Court requires all objections to the execution and return of interrogatories, on appeal trials, to be made before the cause has been submitted to the Jury. The case was on the appeal. The plaintiff's continuances were exhausted.

We think the...