Lemon v. Jenkins
| Decision Date | 31 January 1873 |
| Citation | 48 Ga. 314 |
| Parties | Abel, A. Lemon, executor, et al., plaintiffs in error. vs. William Jenkins et al., defendants in error. |
| Court | Georgia Supreme Court |
New trial. Evidence. Monomania. Insanity. Deed. Before Judge GREEN. Henry Superior Court. October Term, 1872.
*Abel A. Lemon, as executor of Alexander Lemon, deceased, filed his bill against William Jenkins and others, containing substantially the following allegations:
Alexander Lemon died on December l7th, 1866, and shortly thereafter complainant qualified as his executor; the assets of the estate which have come to complainant's hands are insufficient to satisfy the debts of deceased. The second item of testator's will is as follows:
Complainant further alleges that on November 13th, 1861, testator made and delivered to the legatees mentioned in said item, who were then minors, a deed to said tract of land, which remained in the possession of complainant's family for one or two years, when it disappeared and perhaps may have fallen into the hands of testator. After the death of testator this deed was found, but in a mutilated condition, the names of testator and of the attesting witnesses having been torn off. *This instrument had never been recorded. On August 14th, 1863, testator executed a deed conveying said tract of land to one William Price in trust for the use of his wife Mary F. Price during her life, then to her children, and if no children, to her heirs. William Price died and his widow subsequently married the defendant, William Jenkins. Testator, on February 23d, 1865, having discovered that the first deed was lost or mislaid, reaffirmed the same under his hand and seal. William Jenkins and wife claim said land as do also the grantees in the first deed. Under these circumstances complainant cannot sell the same and apply the proceeds thereof to the payment of testator's debts without litigation. He therefore applies to the Court for its assistance in order to avoid a multiplicity of suits, etc. Prayer, that all of said deeds may be decreed to be canceled, and that the Court shall decree to whom said land belongs; that the writ of subpoena may issue.
The answers of the defendants are unnecessary to an understanding of the decision of the Court, and are, therefore, omitted. The bill, evidence and motion for a new trial clearly present the case.
The complainant introduced the following evidence:
Abel A. Lemon, the complainant, in addition to sustaining the allegations of his bill, testified as follows: The deed of November 13th, 1861, conveying the land in controversy to Eliza Lemon, the daughter of testator by his second wife, and to the children of complainant was drawn by complainant. It was signed by testator, and witnessed by Humphrey Tomlinson, John A. Smith, and Bushrod Pettil, a Justice of the Peace, in the presence of complainant. Testator then took the deed, called up the children, and delivered it to his daughter Eliza for herself and the others. Eliza handed the deed to complainant and requested him to keep it. Testator was complainant's brother. He requested complainant to write the deed for him. Advised him to make a will. He refused. Complainant put him off once or twice, until hesaid that if complainant would not prepare the deed, he would get *some other person to write it for him. Kept the deed six or eight months, perhaps longer, when testator asked for it. Complainant told him that he had no right to give up the deed, but disliking to refuse him, prepared an exact copy of the original. Some time after this, testator and his son-in-law, William Price, came to see complainant, and testator requested a settlement of money matters between them, and while complainant was looking up the papers showing testator\'s indebtedness to him, testator asked for the deed. Complainant found it and placed it on the table. Testator\'s indebtedness to him at that time was more than $1,500 00. He paid in cash all over that amount, and gave me his note, with Price as security, for the balance. Complainant then left the room. At this time Price held the deed in his hands and was reading it. When complainant returned, testator and Price were gone and the deed was missing. Never asked testator or Price for the missing deed, as he had a copy. Never saw this deed again until he found it in the office of John R. Hart, Esq.. when he took it up and said it was his property and he should keep it. When the deed was taken from the possession of complainant it was not mutilated; when he found it again the names of the maker and of the attesting witnesses were torn off. The deed was executed at the house of testator. He was sober and perfectly capable of making any contract. The deed was read over to him in the presence of the witnesses. He executed it freely and voluntarily. Complainant did not influence him to execute the deed, but advised him to the contrary. Does not know who mutilated the deed. Testator frequently sent for complainant to advise him in his business. Sometimes drew papers for him. Was usually with him on such occasions. On the occasion that the deed of November 13th, 1861, was executed, complainant drew a deed for testator, in which he conveyed his negroes to his wife for life, remainder to his daughter Eliza, and in case she died without issue, remainder over to the children of complainant. Thirty or forty negroes were conveyed. Complainant was appointed trustee. Testator had lost one eye, *suffered from rheumatism, and could not move about well. He sometimes took a drink, but never saw him when he was unable to make a contract or to transact his business. In 1861. testator\'s daughter. Alary, was eighteen or twenty years old. Price ran away with her and married her. Testator was displeased with this conduct. When he was in trouble he did not drink. He was very much enraged at this marriage. He cried and cursed about it. The deed was made on the second day after her marriage. The land in controversy was drawn by Mary\'s mother and her sister, Eliza Smith, as orphans. Whenthe deed of 1863 was executed, testator and Price and his wife were friendly. Price died before the testator. When Mary married Jenkins, testator was very much opposed to it and tried to keep her from it. The certificate by which he reaffirmed the deed of 1861 was prepared by complainant and signed immediately after Mary\'s second marriage. Complainant also drew the copy deed to which said certificate is attached.
Humphrey Tomlinson proved the execution and delivery of the deed of November, 1861.
John A. Smith corroborated Tomlinson as to the execution and delivery of the deed, and testified additionally as follows: Witness conversed with testator for some time before the other witnesses to the deed came in, about making a will and not a deed; told him that if he made a deed he never could revoke it if he subsequently changed his mind, but if he made a will he could change it. Testator replied, "No, I intend to make a deed, so that it cannot be changed, for my determination is, and I have made up my mind, that my daughter Mary shall never have the wrapping of my finger's worth of my property, and there is no use in talking about it." Testator was competent to transact business, and executed the deed freely and voluntarily. He was neither drinking nor drunk at the time. Has known testator for many years, and have never seen him in a condition incompetent to transact his business. He was greatly excited—mad about Mary's marriage. He cried during the time witness was there.
*Doctor Tye testified as follows: Knew testator for twenty-five or thirty years; was his family physician in November, 1861. He was capable of attending to his business and of making any sort of contract. He was an excitable man and sometimes drank liquor. He kept it in his house. He was sometimes pretty far along in drink.
The answers of Andrew J. Cloud to a set of interrogatories were substantially as follows: Testator told witness that he made a deed in 1861, conveying the property in dispute to his daughter Eliza and the children of complainant. Afterwards saw the deed; it was signed by John A. Smith, H. Tomlinson and B. Pettil, Justice of the Peace, as witnesses. Does not know when the deed was executed, except from the date it bore. It was dated November 30th, 1861. Compared the copy deed prepared by complainant with the original before it was mutilated, and found it correct. This occurred at the house of complainant, at McDonough. Complainant had the original and the copy in his possession at the time. Testator was very much opposed to his daughter's marriage, but never saw him act like a wild man. He told witness that she should never have any of his property. Has no clear recollection on...
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