Smith v. Bryan

• Decision Date: 30 November 1864
• Citation: 34 Ga. 53
• Parties: Matthew Smith, plaintiff in error. vs. Seaboen C. Bryan, defendant in error.
• Court: Georgia Supreme Court

34 Ga. 53

Matthew Smith, plaintiff in error. vs. Seaboen C. Bryan, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1864.

In Equity, in Lee Superior Court. Motion to dissolve In-j unction and dismiss Bill. Decided by Judge Richard H. Clark. At Chambers, October, 1864.

Smith filed bis bill against Bryan in Lee Superior Court, returnable to September Term, 1864. Bryan did not reside in Lee, but in Macon county, and this fact appeared on the face of the bill; and upon it, the defendant denied the jurisdiction of the Court. He presented that defence at the first term, both by demurrer and by plea. He, also, at the same time filed his answer to the allegations of the bill; indeed, all the modes of defence were comprehended in the same instrument: the first part being a demurrer to the jurisdiction; the second, a plea to the jurisdiction; and the third, an answer to the merits.

Upon these pleadings, and certain affidavits read in support of the allegations of the bill and answer, respectively, the cause came up for decision before Judge Clark, at Chambers, on a motion made by defendant to dissolve the injunction and dismiss the bill. The grounds of the motion were: 1st, Want of equity in the bill; 2d. Want of jurisdiction in the Court; 3d. That the equity of the bill, if any, had been sworn off. His Honor, Judge Clark, held that there wasequity in the bill, and that the same was not sworn off, but ordered the bill dismissed for want of jurisdiction.

The parties then agreed, in writing, to bring before the Supreme Court, in a joint bill of exceptions, the whole motion decided by Judge Clark, winch they did accordingly—the complainant excepting to the ruling touching jurisdiction, and the defendant to that touching the equity. They further agreed " to go to trial in the Supreme Court on the merits of the bill, answer, and affidavits."

The Bill made the following case:

On the 15th of July 1863, complainant sold to the defendant his homestead and plantation, situate in the county of Lee, for $16,000.00, payable the 1st of January, 1864, in Confederate money, and conveyed the same to him by deed. While the negotiations were in progress, complainant told the defendant that if he sold the premises he wished to invest the proceeds in negroes for his children; and the defendant desiring, if he purchased, to divide the price into two payments: the complainant offered to gratify him upon condition, that the last payment should be in good money—not Confederate money. The defendant thereupon proposed that if complainant would take the whole price in Confederate money, he would give his note for it, payable in that currency, making it all due on the 1st of January, 1864; and, moreover, that if complainant would execute the deed at once, he would pay the note promptly at maturity—complainant telling him expressly that if he sold the land for all Confederate money, payment must be promptly made on the 1st of January, 1864, so as to enable him to invest as before mentioned—accepted the terms proposed, and the contract was closed accordingly, the defendant reiterating his promise to pay promptly.

In performance of this contract, the deed was made and delivered at the time of the sale. It was written by James Morgan, and complainant suggested that the same person should write the note also; but defendant saying that he could write it before Morgan got ready, wrote off and signedit, and after going through the form of reading it to complainant, he handed it to him; and he, without knowing anything of its contents, except as read over to him by defendant, took and accepted it. The note, as read out by defendant, corresponded precisely to the terms of the contract; that is, was for $16,000.00, payable on the 1st of January, 1864, in Confederate money; but as actually written and delivered, it contained the superadded words, " or bonds, " enlarging the medium of payment from Confederate money only, to Confederate money or bonds. These words the defendant fraudulently inserted, and knowingly, and designedly suppressed in the reading; and the complainant, in utter ignorance of their insertion, accepted the note and executed the deed. And he never discovered the true phraseology of the note until near the following Christmas, when his step-daughter, in looking over his papers, noticed and informed him of it.

The note was not paid at maturity; and about the time it became due, defendant informed complainant that he would not pay for the premises until he obtained possession of them. Complainant refusing to surrender possession, the defendant promised him that as soon as the possession was yielded, he would pay every dollar in Confederate money. Complainant thereupon, confiding in this promise, moved out, and as soon as the defendant got possession he refused to pay, saying he had no money.

This refusal was persisted in until after the passage by Congress of the late currency bill depreciating Confederate money, so as to make three dollars worth but two; and even after the passage of that bill, no tender was ever made of the whole amount due; nor any amount whatever, (as complainant was advised.) The defendant, however, in company with Seaborn Moore, came to the complainant on the — day of March 1864, and said he wanted to pay $10,000.00 in the old issue at par. He had with him something rolled up in a paper which he said was $6,000.00, and he said that Moore had a package of $3,000.00; but no money was actually shownor exhibited—not a dollar. Complainant offered to receive the whole amount at 33¹/_3. per cent, discount, but this basis of settlement the defendant declined.

Two payments, only, were ever made on the note; the first of $10,000, paid in Confederate money on the same day the note was executed, and entered thereon as a credit under that date; the second, of $126, paid in syrup and oats, on the 1st of January, 1861, and entered as a credit under date of February 20th. The aggregate of these payments, with interest thereon, the complainant offered by his bill to repay to defendant, or deposit in Court. He offered to surrender the note itself.

The lands had appreciated since the sale, to the value of $35,000, or other large sum. They were valuable, not for agricultural purposes only, but, lying contiguous to a railroad, for timber, and lumber also. The defendant was still in possession, and being a trader and speculator, the complainant feared he would cut, sell, and carry off the timber and lumber, and that he would sell and convey the premises themselves to some bona fide purchaser without notice.

Complainant was an aged, infirm, blind, and illiterate man. He could scarcely see anything, and had never gone to school a day in his life. Of his disability, consequent upon these things, the defendant took advantage to impose upon him a note fraudulently written and falsely read. He was unable to read it for himself, and had he been aware that it contained the words, " or bonds, " he would neither have accepted it nor have made the deed. He had known the defendant for forty years, and in him he reposed the utmost trust and confidence; he relied most implicitly upon his representations and promises; he confided thoroughly in his good faith, truth, and integrity. In the exercise of this unreserved confidence, he agreed to make, and did make the deed, upon defendant's promise to pay promptly; without which promise and his trust in it, he would not have executed the deed, and this the defendant well knew. The same confidence led to the acceptance of the note, without doubt orsuspicion, upon the reading of it by the defendant. Finally, though the previous abuse of it in drafting and reading the note had then been discovered, confidence was again extended to defendant\'s promise, and he was let into possession upon his undertaking to pay the debt as soon as the possession was surrendered.

All this confidence was met by the defendant with fraud. By a fraudulent promise ho procured the deed; by a fraudulent insertion in the note, he made vary from the contract; by a fraudulent reading of the note, he induced its acceptance in that form; and by a second fraudulent promise, he obtained possession of the premises.

Besides the usual prayers for subpœna and general relief, the bill prayed specially for the cancellation of the deed; for the restitution of possession, with an accounting for rents; for a complete annulling and rescinding of the contract; and for an injunction to restrain the defendant from cutting, felling, or hauling off the timber or lumber, and from bargaining, selling or conveying the lands themselves, or any part or parcel thereof.

There was no prayer for discovery, but, on the contrary, any answer from the defendant was expressly waived.

The bill was verified by the oath of complainant on the — day of April 1864, and on the 28th of May following, it was sanctioned, and the injunction ordered.

The Answer admitted the purchase at the price alleged, due at the time specified; the writing of the deed by Morgan; its delivery at the time of the purchase; the writing of the note by defendant, and the reading of it over by him to the complainant. It stated that defendant had no recollection of complainant's wishing Morgan to write the note, or of the remark consequent thereupon as charged. It denied that complainant mentioned any purpose to invest in negroes, or that he exacted good money for the last payment; his assent to two payments being attended simply with the requirement of interest upon the first from January 1st, 1864. It averred that defendant expressly stipulated for paying in Confederate securities; and that before the contract was closed, both parties agreed upon one payment, and that it should be made in Confederate securities. It denied the alleged promise to pay promptly, and affirmed that defendant said, that if it should turn out inconvenient to pay all when due, he would like indulgence on...