King v. King

• Decision Date: 31 December 1867
• Citation: 37 Ga. 205
• Parties: Mary J. King, plaintiff in error. vs. Joshua King, et al., defendants in error.
• Court: Georgia Supreme Court

37 Ga. 205

Mary J. King, plaintiff in error. vs. Joshua King, et al., defendants in error.

Supreme Court of the State of Georgia

DECEMBER TERM, 1867.

Equity. Motion for new trial. Decided by Judge Underwood. Floyd Superior Court. July Term, 1867.

Mrs. King, by bill in Equity, made the following averments, She married Joshua King in 1849; two daughters, issue of the marriage, are living, aged respectively sixteen and twelve years; King took into possession $8,000.00 worth of property descending to her from her father and sister. They entered into a deed of separation, by which King was to hold $4,300.00 as trustee for her and the said daughters, paying to her semi-annually the interest thereon for her support, and giving the corpus to said daughters at her death, immediately separated, and have so continued. (She sued her husband for a divorce a vinculo matrimonii to January Term, 1861, of Floyd Superior Court, and got final judgment therefor in July, 1863.) King failing to pay the interest, she employed Daniel R. Mitchell, Esq., to sue for it only; Mitchell had Wm. D. Franklin appointed trustee for her, and in his name sued on said obligation, and got a judgment for the full amount in July, 1863. When she heard of this suit, she told Mitchell and Franklin each not to receive any part of this judgment in Confederate currency; but six months thereafter Mitchell and Franklin combined to defraud her and her daughters, Mitchell advised her and Franklin, that they were bound to take said currency in payment, saying that if they refused, the military authorities of the Confederate States would compel them to take it. Having confidence in Mitchell, and frightened by said remark, she consented that Franklin should receive the currency in payment of the judgment, which was justly for par funds, and this he did on the first of January, 1864, when said currency was worth only five cents in the dollar. Meanwhile, and by the 30th of January, 1864, Henry A. Gartrell had been appointed trustee in lieu of Franklin, and to him Franklin paid over said currency. Gartrell used the currency in private speculations, and refuses to account therefor. She admits that she received a part of the interest and some other payments in said currency, and some in United States currency. She saysshe knows not how Franklin or Gartrell became trustee, and cannot ascertain, except by an appeal to their consciences. She claims that the Confederate money should discharge said debt only pro tanto according to its value; that Gartrell should pay the value of what he got when he took it; and that Franklin, Mitchell and King should each and all of them, be held liable to make good the balance. Her prayer is for discovery account and settlement. The defendants answered the bill.

Mitchell answered that she employed him to sue for said divorce, and she obtained it in 1863; that the main difficulty was an agreeable division of the property, the parties were bitter towards each other, he thought it best, and advised that this should be arranged out of Court, and on the 9th of February, 1861, pending said divorce case, he drew up a proposition, in substance, as follows: Franklin should be her trustee, or should he refuse to be, some person, (other than Dr. John L. Hughes and Henry Dobson,) should act; King should convey $4,300.00 worth of property, to be agreed on by him and the trustee, or if they failed to agree as to the property and price King would secure the payment of that sum in cash to the trustee, with interest from date, or from the time he should fail to pay the $25.00 allowed by Judge Hammond's order at the last term; the property or money to vest in the trustee for her during life, remainder to her three daughters by King; she to have absolutely for her use and support the rents, issues and profits or interest; King to maintain and educate the children, allowing her to keep the youngest till seven years old, he supporting and clothing her and paying to her trustee for her use $100.00 per annum, and King to pay the entire costs and $100.00 to Mitchell as his fee for professional services for Mrs. King, (this was signed by Mrs. King, and Mitchell as her Attorney.) King in writing, accepted the proposition, and Franklin, on the 11th of February, 1861, accepted the trust. Mitchell did not then or yet know anything about said deed of separation He did not know Franklin at the time; she proposed her brother, Hughes; King objected, saying he would not signthe agreement if Hughes or Dobson had anything to do with it. Mitchell told Mrs. King of this, and she then selected her cousin, Wm. D. Franklin, of Gordon county, and tin\'s was the first Mitchell had heard of Franklin in connection with the matter; Franklin was not present then, or when King accepted, and is not believed to have heard of it till after the acceptance by King. She said she would see Franklin and get him to accept the trust, and Franklin came to Mitchell\'s office and did so, saying he was gratified that this matter as to the property was adjusted.

Under Mitchell's advice Franklin proceeded to close up the transaction; he failed to agree with King as to the value of the property offered, and determined to take the money, and took the notes herein mentioned. Mitchell had nothing farther to do with this till Franklin brought him a writing from King to Franklin, stating that because Mrs. King had failed to comply " with the agreement and understanding had at the time, " and had taken possession of much of the property which it was understood should be turned over to her in lieu of said note, and the balance was ready to be turned over, the consideration of his note had failed, and he would pay neither the principal nor interest on it. This writing was dated the 16th of February, 1862.

King told Mitchell that he had made no agreement to take property for the note, and if Mrs. King had done so, it was without his authority, and said he knew no remedy but to sue on the note, and asking Mitchell, was advised that he thought it best to sue, and thus settle the matter. Franklin then delivered Mitchell the note for $4,300.00, dated 1st of March, 1861, and due twelve months after date, and the notes for interest for collection, he sued to July term, 1862, and got judgment at July term, 1863. Before judgment was taken King asked Mitchell if he would take Confederate money, he said he would unless ordered not to, that he was taking it for his and his other clients' debts; with this understanding King, by his attorneys, A. R. Wright and Underwood and Smith, confessed judgment.

On the 10th of July, 1863, Mitchell as such attorney, took from King the amount due on the judgments, in such currency, most of it being in seven-thirty notes, and in a few days wrote Franklin, informing him of it, got no answer, wrote him again, and on the 8th of October, 1863, Franklin came to Mitchell\'s office, and as such trustee receipted him for $4,534.00, the full amount, less the commission for collection, and this without objection, as Mitchell recollects. Mitchell took Confederate money, nearly $100.00, after that, and up to the surrender of Gen. Lee, honestly believing that the cause of the South was just, and that the Confederate States would succeed and its currency be good.

Mrs. King never instructed him to take only the interest; he knew nothing of her in this suit whatever, Franklin was his client and he never gave such instructions; but she was anxious for Mitchell to pay the Confederate money to her when it was collected, but he would only pay it to Franklin as trustee. All other statements in the bill as to his advice or conduct inconsistent with the foregoing are denied.

Franklin answered that he accepted the trust at the instance of Mrs. King, took the said $4,300.00 note, with Samuel T. King as security, and though he got said notice from the maker he did not sue till notified by the security to sue, and then he did it, not to collect the note, but to keep the security from being discharged, and had no intention of taking Confederate money for the claim till he did take it from Mitchell. On the 8th of October, 1863, he paid complainant $234.00, the interest, and kept the balance separate from his funds, rolled up in his trunk, till on the 17th of March, 1864, he paid it over to said Gartrell as trustee. Nor did he take the money from Mitchell till Mrs. King instructed him to do so, though he thinks she did take it under an idea that she was compelled to do so. He was not appointed trustee by order of Court, gave no bond, got no order to receive the currency, and without any order of Court procured by himself authorizing him, he paid it to Gartrell as trustee, by Mrs. King's request. He acted in the premises for accommodation, without commissions or reward, and in good faith. King answered that the property coming to Mrs. Kingby inheritance was worth only $3,000.00, and gave a statement of the items (including three slaves,) making a sum total of $3,007.60²/₃; that on the 21st of July, 1860, he and his wife entered into written articles of separation, by which each was to allow the other to get a divorce by offering no defense. In consideration of this he was to settle absolutely on her $3,000.00, to be paid when divorces a vinculo matrimonii were granted to both, and to settle $3,000.00 on their three children, in trust, absolutely, and if all of them died before their mother, then she was to have half of the sum; she was to keep Hertha, the youngest child, and he to keep the other two, and he to maintain all of them till said divorces were granted. He was to pay Judge Wright and D. S. Printup $100.00 each for the settlement and getting the divorces, and after the divorces King was to pay Mrs. King the interest on one-third of the childrens\' fund ($70.00) annually, for the support of Hertha, and King was to be the trustee, and give bond and security accordingly.

This was signed and sealed by him and...