Robson v. Harwell

• Decision Date: 31 March 1849
• Docket Number: No. 85.,85.
• Parties: John Robson, administrator de bonis non of Isaac Walton, deceased, plaintiff in error. vs. L. T. P. Harwell and Wife, defendants.
• Court: Georgia Supreme Court

6 Ga. 589

John Robson, administrator de bonis non of Isaac Walton, deceased, plaintiff in error. vs. L. T. P. Harwell and Wife, defendants.

No. 85.

Supreme Court of the State of Georgia

MARCH TERM, 1849.

In Equity, in Morgan Superior Court. Tried before Judge Merriwether, March Term, 1849.

Littleton T. P. Harwell and his wife, Martha Harwell, formerly Martha Robinson, filed their bill in Morgan Superior Court against Peter Walton, administrator of Isaac R. Walton, deceased, charging—

That Martha S. Harwell was born in 1804, and at the age of four days was adopted by Isaac R. Walton, deceased, as his child; that about the year 1818, the said Isaac R. being desirous to settle a plantation, was so well pleased with a lot of land belonging to complainant's father, Littleberry Robinson, known as the Black Gum Hill lot, that after repeated applications to buy the said lot, which the said Robinson repeatedly refused to sell or convey to said Walton, that said Littleberry Robinson finally, about the first of December, 1818, at the earnest soliciation of said Isaac R. and in consideration of an agreement and promise, then entered into by the said Isaac R. to the said Littleberry, that he would put twenty negroes, slaves, upon said lot of land, and add thereto such other land as might become necessary for the said slaves and their increase to cultivate, during the lifetime of the said Isaac R. and at his, said Isaac R.'s, death, to deliver and convey, or cause to be delivered and conveyed to your orafrix, the adopted child of the said Isaac R. as aforesaid, the said Black Gum Hill lot whith such other land as might be added thereto for the purposes aforesaid, together with the said twenty slaves and their increase, and such stock, plantation tools and furniture, utensils, &c. as might be upon said place, at the death of said Isaac R. he, the said Littleberry Robinson, did convey to' the said Isaac R. the said Black Gum Hill lot of land, worth $4,000, together with a stock of cattle, sheep, &c. worth $500, upon said lot of land, the said Isaac R. paying nothing for thesaid land and stock, as they are. informed and believe; nor was he, by the agreement with said Littleberry Robinson, bound to pay for the conveyance of said land, and delivery of said stock, any other consideration than that set forth in said agreement; that in pursuance of said agreement, the said Isaac It. in good faith, did put twenty negroes, slaves, upon said plantation, and went into the possession of the same, and did purchase other lauds adjoining said lot, and often, during his lifetime, told the complainants and others, that the said plantation and all that was thereon would belong to them at his death. The bill farther charged, that the said Isaac R. died without conveying or causing to be conveyed the said property as agreed upon. The bill specified the property that was upon the plantation at the death of Walton, and charged that the same was sold by the administrator. The prayer of the bill was, that the administrator might be decreed to deliver to said complainants, said plantation, negroes, stock, &c. such as it was at the death of the said Isaac R.; and if the administrator shall answer that he has sold the said property, so that the same cannot be conveyed and delivered, that he be decreed to pay out of said estate the full value thereof; or that he be decreed to pay the sum of $4,000, with interest thereon from the time Walton received the land, and for general relief.

The answer of Peter Walton, the administrator, denied the agreement set up in the bill, and insisted upon the Statute of Frauds.

Peter Walton died pending the bill, and John Robson was appointed administrator, de bonis von, of Isaac R. Walton, and made regularly a party to the proceedings.

On the trial on the appeal, after the bill was read to the Jury, counsel for defendant moved to dismiss the bill, on the ground that the facts stated therein did not make such a case as would authorize the equitable interference of the Court. Which motion the Court overruled as being inadmissible at that time, in the orderly conduct of a suit in Chancery. To which decision counsel for defendant excepted.

Complainants offered in evidence the testimony of Robert Taylor, taken by commission, to prove the admissions of Isaac R. Walton, to which counsel for defendants objected—

1st. Because parol evidence is inadmissible to prove the ex-press trust in the land alleged in the bill, in order to enforce its specific performance.

2d. If the facts stated in the bill amounted to and made out a case of fraud, the heirs at law of Littleberry Robinson, and not the complainants, were entitled to recover under the same.

3d. Because a remainder in property cannot be created by parol.

4th. That a specific performance of personalty cannot be decreed under the allegations in this bill.

The Court overruled the objection and admitted the evidence, and defendant excepted.

Much evidence was introduced on the trial unnecessary to be embodied here.

Upon the close of the evidence for the complainants, the defendant's counsel moved to dismiss the bill, on the ground that the case stated in the bill, and attempted to be sustained by the evidence, was not such a case as would entitle the complainants to a decree.

The Court over ruled the motion and defendant excepted.

The defendant then offered in evidence the will of Littleberry Robinson, to show that Mrs. Harwell received under it an equal share of his estate. The evidence was rejected by the Court and defendant excepted.

The Court chargd the Jury, that if from the testimony the contract stated in the bill had been proved, according to the rules of law which it would give them in charge, they were bound to find for complainants the value of the property, with interest from the sale. To which charge defendant excepted.

Counsel for defendant requested the Court to charge the Jury—

1st. That there having been no written evidence of the creation or manifestation of the trust as to the land, the same cannot be executed by a decree of specific performance.

2d. That the remainder in this case being created by parol, is void.

3d. That a specific performance of personalty cannot be decreed on the facts charged in this bill.

4th. That the evidence in this case is contradictory, and if the Jury should find the testimony setting up this pretended trust to be contradicted by other evidence, and contradictory in itself, they cannot decree in favor of complainant. 5th. That the Jury cannot decree in favor of the complainants, unless they are satisfied that at the time of the agreement about the land, Isaac R. Walton induced Littleberry Robinson to convey the land to him with a fraudulant intent at the time not to comply with his contract.

6th. That by the contract set up in the bill, an estate for life was created in Isaac R. Walton, and a remainder in the land and negroes in Mrs. Harwell, which being in parol, is void.

7th. That if the Jury believe that the conveyance of the land from Littleberry Robinson to Isaac R. Walton, was fraudulantly procured by Walton, that the heirs at law of Robinson, and not the complaintants, would be entitled to recover; and in that event they could recover only the land so fraudulently conveyed, and not the negroes and other property.

All of which the Court refused to charge, as it had already adjudicated all the grounds except the 4th and 5th. On the 4th ground, the Court declined giving an opinion to the Jury by way cf direction, that the evidence was or was not contradictory, but charged, that if the evidence was contradictory in itself, the Jury could not find for the complainants. On the 5th ground, the Court charged, that the fraudulent intent need not to be proved to have existed eo instanti, with the making of the contract with Robinson, but if he failed to do what he promised, the law will evidence his intend by his act, and connecting his failure to convey with the original agreement, will presume the existance of that fradulent intent on the part of Walton at the time of the conveyance by Robinson.

To all of which charge, and refusal to charge, defendant excepted; and upon these several exceptions error has been sa-signed.

J. Hillyer and T. R. R. Cobb, for plaintiff in error.

A. Reese and F. H. Cone, for defendants.

The following points and authorities were relied on by Mr. Cone, in his argument for the defendants.

1st. The statements in the bill make a case of fraud on the part of plaintiff's intestate.

It is not necessary to charge the fraud in so many words. Ifthe facts and circumstances stated amount to fraud, that is sufficient. Story\'s Eq. Pl. 24, 25, 212. 3 Cowen\'s Reps. 576., 2 Summers\' Rep. 612. 2 Ala. Eeps. 605.

I shall first consider the case in relation to the real estate.

Parol evidence is admissible to show the fraudulent use of a deed, or that a party receiving a deed, absolute on its face, received it under a promise to dispose of the property conveyed by it, in a particular way, and has refused or neglected to perform such promise. 2 Story's Eq. §768, 1265, 395, 437. 7 Simons' Reps. 644. 6 Paige's Reps 355. 1 Dallas' Reps. 424. 13 Ala. 475. 1 Atkins' Rep. 391. Roberts on Frauds, 102. 2 Wash, C. C. Reps. 397. 6 Wheaton, 481. 1 Paige, 147. 3 Atkins, 539. 11 Vesey, 626. 2 Ala. 571.

The Statute of Frauds was never devised to protect fraud, and when a person obtains a conveyance of property, upon a parol assurance or promise that he will dispose of it in a particular way, a Court of Equity will compel him to perform the promise, 9 Vesey, 516. Pres. Ch. 3. 1 Vernon, 296. 2 Ib. 506. 2 Vesey & Beame, 259. 6 Vesey, 252. Ambler, 69. 1 Vesey, 123. 3 Atkins, 359. 2 Freeman, 52. 5 Viner's Abg. 521. 8 Bligh. 111. 1 Cox, 414. 1 John. Ch. Reps. 582. Ib. 406. 3 Cowen's Reps. 539. 2 Desaussure, 14. 2 Vesey, 155. 10 Vessey, 243. 1 Hovenden on Frauds, 495. 2 Merivale, 120. 1 Atkins, 380. 1 Story's Eq. §330. 1 Young & Collyer, 583. 2...