Peacock v. Terry

• Decision Date: 31 August 1850
• Docket Number: No. 30,30
• Citation: 9 Ga. 137
• Parties: Lewis Peacock, plaintiff in error. vs. Stephen Terry, defendant.
• Court: Georgia Supreme Court

9 Ga. 137

Lewis Peacock, plaintiff in error. vs. Stephen Terry, defendant.

No. 30

Supreme Court of the State of Georgia

AUGUST TERM, 1850.

In Equity, in DeKalb Superior Court. Tried before Judge Hill.

This was a bill in Equity, filed by the defendant in error against the plaintiff in error, returnable to DeKalb Superior Court, alleging that in the year 1831, complainant was in need of money, and applied to the defendant, who loaned him, at different times, sums amounting in the aggregate to $502 46 cents, all at usurious interest; that complainant paid defendant, at different times, the aggregate sum of $459 63 cents; that he renewed his note yearly up to 1837, when he gave defendant his note for $807 65 cents, and to secure the same, gave the defendant a mortgage on lot of land No. 71, in the 14th district of originally Henry, now DeKalb county.

The bill alleges, that in the year 1841, the said lot of land, together with another, known as lot No. 90, adjoining thereto, were levied upon by virtue of two executions against the complainant, when he entered into an agreement with the defendant, by which the defendant was to pay the plaintiffs in execution the amounts due them, and take them up and hold them against the complainant; that the defendant was to have the possession of both lots of land—on one of which there was a grist and sawmill—with the exception of the dwelling-house, and fifty acres of land around it; that the use of the plantation and mills was to be a full compensation to the defendant for his interest on his mortgage debt and the executions; and that complainant was to have three years in which to redeem them, and upon failure of his redeeming them, the defendant was to take lands and mills at the price of $1,600.

The bill further charges, that a short time after the contract, the defendant Stated, that as the lands had been levied upon, that he preferred their being sold, to prevent other creditors from interfering with him, to which complainant consented. The lands accordingly were sold, and the defendant became thepurchaser—representing, alt the time, that his object in having the land sold was to perfect titles.

The bill further charges, that complainant and defendant worked together in repairing the mills, for some months, when the defendant denied the contract and turned the complainant out of possession.

The bill prayed that the defendant may account to complainant concerning the usurious transactions charged; also, that the note and mortgage may be delivered up to be cancelled, provided it shall appear that the principal has been paid; also, that the sale of the lands by the Sheriff be declared void, and the deeds be delivered up to be cancelled, or else that defendant be decreed to perform, specifically, his several agreements With complainant.

The defendant, by bis answer, denied, either in whole or in part, most of the allegations charged in the bill.

On the trial of the cause, counsel, in order to rebut the presumption of fraud, offered to prove by one Thomas J. Perkinson, "that complainant had told him that said lands were sold and purchased by the defendant, in pursuance of an agreement made between complainant and defendant, prior to said sale, by virtue of which, the defendant was to bid off the lands at the sale, and was to have possession of the mills and all the lands, except the dwelling-house and fifty acres around it; that the use of the lands and mills was to pay the defendant for the interest upon the mortgage debt and the executions which defendant had purchased against the complainant, and that the complainant was to have the right to redeem said premises at any time within three years, and upon his failure to do so, the defendant was to keep the property at the price of $1,600." Which testimony was rejected by the Court, and counsel for defendant excepted.

Counsel for the defendant offered in evidence an affidavit made by the complainant before Thomas J. Perkinson, as a Justice of the Peace, in the year 1842, in which complainant had made similar statements to those sought to be proved by Perkinson. The Court rejected the affidavit, and counsel for the defendant excepted.

After the testimony had closed in the cause, and one counsel on either side had addressed the Jury, and the second counsel for the defendant was addressing them, he was interrupted by the Court, "who stated that he felt it to be his duty to state, that he did not think the complainant could recover with his bill in its then condition." Whereupon counsel for complainant moved the Court to amend the bill instanter, by striking out all that part of the same Which contained anything in reference to the contract between the parties; and also by making material and substantial allegations in the bill in relation to the fraud charged to have been committed, at the Sale of the lands by the Sheriff, by the defendant. Counsel for defendant objected to the motion. The Court overruled the objection, and allowed the amendments, and the defendant excepted.

Counsel for the defendant requested the Court to charge the Jury—

1st. That if they should believe, from the evidence, that the sale by the Sheriff was made in pursuance of an agreement made between the complainant and defendant, that it was not fraudulent as to complainant.

2d. That although they might believe that a fraud was practiced by defendant in Said sale, yet, if they should believe that complainant was a participant in said fraud, that he had no right, in a Court of Equity, to be relieved against it.

3d. That complainants had no right to be relieved against the Sheriff's sale, by having the deed declared void, because he had made no offer in his bill to repay the defendant the money paid by him for said land, and had not tendered it or brought it into Court.

4th. That although they might be of opinion that the sale ought to be set aside, yet the complainant would have no right to recover damages for injuries done to the property, or for houses removed from the same, because he had set up no claim to such damages in his bill. All which the Court refused to charge, but in lieu of the third request did charge the Jury, "that if defendant had been guilty of a fraud, and had paid out his money for the land in pursuance of said fraudulent arrangement, that com-plainant was under no obligation to pay him hack his money, but that he might get it back the best way he could." The Court also charged the Jury, "that to entitle the complainant to relief against the payment of the usury, it was not incumbent on him to make a tender of the principal and lawful interest due on the money borrowed, or to bring the money into Court, provided it was a matter of calculation to ascertain whether the principal and interest had or had not been paid."

Counsel for defendant asked the Court to charge the Jury, "That the allegations and admissions in complainant's bill were evidence against him." To which the Court replied, "That this might be true in certain cases, but that in this case, the defendant had denied the allegations in the bill, and, therefore, they were not evidence for either party." The Court also charged the Jury, "that inasmuch as this bill had been amended by striking out all that part in relation to the contract between the parties, that they would have nothing to do with that part of the bill which had been stricken out, but would treat it as though it had never existed."

To all which charges and refusals to charge by the Court, counsel for defendant excepted, and upon these several exceptions has assigned error.

Judge Warner, having been of counsel in the Court below, did not preside in this case.

Calhoun & Dabney, and Ezzard, for plaintiff in error.

Murphey and Collier, for defendant.

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

The evidence of the witness, Perkinson, was offered on the trial before the amendments were made. The question of its admissibility is, therefore, to be determined with reference to the case at that time made by the bill. It was proposed by the defendant below, to prove by the witness, Perkinson, the statements of the complainant, that the lands were sold, and boughtby the defendant at Sheriff\'s sale, in pursuance of an agreement made between the complainant and defendant prior to the sale, and as to what that agreement was. One of the main grounds relied upon in the bill for a decree is, that the defendant having purchased executions against the complainant, which had been levied upon his lands, and whilst holding a mortgage upon the lands, had fraudulently caused it to be brought to sale, and by false statements and fraudulent pretences, that the sale was only for the purpose of perfecting titles in him, bought the same at a merely nominal price. One of the prayers of the bill is, that this sale be set aside. Now, this evidence was offered to prove that the land was brought to sale and bought by the defendant, in pursuance of and in accordance with an agreement between the parties that it should be so bought and sold. The plaintiff\'s ground for setting aside the sale, is the fraud in the sale. If there was no fraud, he (complainant) cannot set it aside. If the sale was by his consent and agreement, there can be no fraud against him. The evidence goes to show that consent and agreement, and to deny the fraud. It was pertinent to the issue— it was to prove the agreement by the admissions of the complainant, and ought to have been admitted. Upon the same grounds, and for the same reasons, the affidavit of the complainant, made before the Justice, (Perkinson,) to the same effect, ought to have been admitted.

The amendments to this bill, made on the trial, were erroneously made. Two things are to be considered—

1st. The time at which the amendments were made.

2d. The character and effect of the amendments.

This cause, as appears from the record, had been some six or seven years in Court. The pleadings were finally perfected...