Toomer v. Dickerson

• Decision Date: 31 December 1867
• Citation: 37 Ga. 428
• Parties: Henry L. Toomer, plaintiff in error. vs. Henry J. Dickerson, defendant in error.
• Court: Georgia Supreme Court

37 Ga. 428

Henry L. Toomer, plaintiff in error. vs. Henry J. Dickerson, defendant in error.

Supreme Court of the State of Georgia

DECEMBER TERM, 1867.

Demurrer. Decided by Judge Flemming. Chatham Superior Court. May Term, 1867.

On the 25th day of June, A. D., 1866, in the County Court of said county, Henry L. Toomer commenced his statutory action against John F. Tucker and Henry J. Dickerson, on their bond for the penal sum of one hundred and seven thousand, three bundled dollars ($107,300,) which, at the trial term, was transferred by consent of parties to the appeal docket of the Superior Court.

When the cause came up for trial, the defendants having pleaded separately, the plaintiff moved the Court to strike out all the said pleas except the first plea of the defendant Tucker, which was a plea of partial payment; and the motion was sustained, and the pleas stricken out accordingly.

The defendant Dickerson then filed the following pleas:

Henry J. Dickerson,

ats.

Henry L. Toomer.

1st. That he signed said bond, the subject matter of said action, as surety, and is only liable as such.

2d. That the said plaintiff, at the time when said bond and the first installment thereof became due and payable, forbore to call on said Tucker to pay said bond, and, on the contrary, gave time to said Tucker to pay said bond, and the money thereon, and, by said forbearance and giving time, injured said Dickerson, security, and increased his risk and exposed him to liability.

3d. That when he signed said bond as security, the said H. L. Toomer took and received from the said John P. Tucker, a mortgage on ninety negro slaves, as collateral security⁷, to secure the payment of said bond, and that when said bond and mortgage became due the said H. L. Toomer failed and delayed for over three years to proceed upon said mortgage and collect said money so due, by the sale of said negroes so mortgaged, but delayed until the emancipation of said negro slaves destroyed said collateral security, which delay increased the risk and liability of said defendant, Dickerson.

4th. That when the said H. L. Toomer took said mortgage on said negroes, as above alleged, as collateral security, he entirely neglected and failed (after the said negroes had been brought into the State of Georgia) to record the said mortgage in Georgia, as required by the laws of Georgia, and by such failure impaired the lien upon said negroes, and thereby increased the risk and liability of said defendant, Dickerson.

5th. That the forbearance and delay of said Toomer to proceed and collect the money due on said bond from said Tucker, injured said defendant, inasmuch as during the time given by said delay to said Tucker he became insolvent, by reason of emancipation of the negroes sold to him, and mortgaged by him to Toomer, and by said delay and its consequences the risk of this defendant, as security, was increased.

6th. That by reason of the failure to record the said mort-gage on said negroes on the part of said Toomer, this defendant was injured, his risk was increased, and his liability extended, inasmuch as judgments were obtained against said Tucker, which took precedence of the lien of said mortgage.

The plaintiff then moved to strike out all of said pleas except the first. The Court sustained said motion as to the 2d, 3d and 5th of the said pleas, which were stricken out accordingly; but allowed the 4th and 6th of the said pleas.

The cause then went to trial on the 1st plea of the defendant, Tucker, and the 1st, 4th and 6th pleas of the defendant, Dickerson, on the evidence following; and a verdict was rendered for the plaintiff against the defendant, Tucker, for $50,000, with interest from the 1st day of January, A. D., 1864, and on $3,500 from the 1st day of January, A. D., 1865, and on the like sum from the 1st day of January, A. D., 1866, and on the like sum from the 1st day of January, A. D.. 1867; but the defendant, Dickerson, was discharged.

The evidence adduced on the trial was as follows: The plaintiff introduced in evidence the bond sued on, with the indorsements thereon, which are as follows:

The State of South Carolina. Know all men by these presents, That, We—John P. Tueker and Henry J. Dickerson, of the City of Savannah, in the State of Georgia, are jointly and severally held and firmly bound unto Henry Laurens Toomer, of the city of Charleston, State of South Carolina, in the full and just sum of one hundred and seven thousand three hundred dollars, to be paid unto the said Henry Laurens Toomer' as aforesaid, his certain attorney, executors and administrators or assigns: to which payment, well and truly to be made and done, we bind ourselves and each and every of our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated the 1st day of December, in the year of our Lord one thousand eight hundred and fifty-seven, and in the eighty-second year of the Sovereignty and Independence of the United States of America.

The condition of the above obligation is such that if the above bound John V. Tucker and Henry J. Dickerson, as aforesaid, or either of them, their or either of their heirs, executors or administrators, shall and do well and truly pay, or cause to be paid, unto the above named Henry Laurens Toomer, as aforesaid, his certain attorney, executors or administrators or assigns, the full and just sum of fifty-three thousand six hundred and fifty dollars, to be paid as follows, viz: The first installment of seventeen thousand eight hundred and eighty-three dollars thirty-threehundredths ($17,883 33) on the 1st day of January, which will be Anno Domini, one thousand eight hundred and sixty-one (1861,) the second installment, of seventeen thousand eight hundred and eighty-three dollars thirty-three hundredths ($17,883 33) to be paid on the 1st day of January, which will be Anno Domini (1802;) and the third and last installment of seventeen thousand eight hundred and eighty-three dollars thirty-three hundredths ($17,883 33) to be paid on the first day of January, which will be Anno Domini (1863,) with interest, annually, from the date hereof on the whole amount unpaid, until the whole principal and any interest that may become due and unpaid, shall both be paid and satisfied fully—then the obligation to be void and of none effect, or else to remain in full force and virtue. Sealed and delivered in presence of:

It. F. Akin, Notary Public C. C.

JOHN F. TUCKER, [L. S.]

H. J. DICKERSON, [L. S.]

(Endorsements as on said bond.)

Charleston, January 5th, 1859.

Received from John F. Tucker, thirty-seven hundred and fifty-five 50-100 dollars one year interest on the within bond to 1st January, 1859.

$2,755, 50-100 H. Laurens Toomer.

Received, Charleston, January 10th, 1860, from J. F. Tucker, thirty-seven hundred and fifty-five 50-100 dollars, being in full of one year's interest to 1st instant on the within bond.

$3,755, 50-100 H. Laurens Toomer.

Received, Charleston, April, 1802, three thousand eight hundred and twenty-three 37-100 dollars, on account of the interest on within bond, up to the 1st day of December, 1861, and three thousand dollars on account of principal.

$3823.37. H. L. Toomer.

Received, Charleston, January 3d, 1863, from J. F. Tucker, Esq., three thousand five hundred and forty-five 50-100 dollars on account of the interest on within bond for one year, and 650 six hundred and fifty dollars on account of principal.

$4195.50 H. L. Toomer.

Received, Charleston, January 12th, 1864, from John F. Tucker, Esq., three thousand five hundred and eight 50-100 dollars in full of one year's interest on the within bond to date.

$3503.05. H. L. Toomer.

The plaintiff then closed his case, and the said Henry J. Dickerson introduced the following testimony:

John F. Tucker was sworn and testified as follows:

Mr. Dickerson signed the bond as surety only, receivingno consideration therefor. The bond was given for the purchase money of ninety-one negroes, which I bought from the plaintiff. The transaction took place in South Carolina, where the negroes were. I gave at the same time a mortgage of the negroes to the plaintiff to secure the bond. I brought the negroes about the same time into this county, where I resided, and where they remained until emancipated.

John Cooper was sworn for the purpose of proving the execution of a paper presented to him, purporting to be the mortgage above referred to.

The said mortgage was then introduced, and is as follows:

The State of South Carolina:

To all whom these presents shall come:

I, John F. Tucker, of the city of Savannah, in the State of Georgia, send greeting:

Whereas. I, the said John F. Tucker, as aforesaid, in and by my certain bond or obligation, wherein Henry J. Dickerson is named as surety, bearing date even with these presents, stand firmly held and bound unto Henry Laurens Toomer, of the city of Charleston, in the State aforesaid, in the penal sum of one hundred and seven thousand three hundred dollars, ($107,300,) with a condition thereunto written for the payment of the full and just sum of fifty-three thousand six hundred and fifty dollars, ($53,650,) as in and by said bond and condition thereof, reference being thereunto had, will more fully and at large appear.

Now know ye, that I, the said John F. Tucker as aforesaid, for the better securing the payment of the said sum of fifty-three thousand six hundred and fifty dollars, ($53,050,) unto the said Henry Laurens Toomer, his heirs, executors, administrators or assigns, together with lawful interest for the same, I, the said John F. Tucker, as aforesaid, have bargained and sold, and by these presents do bargain and sell, and in plain and open market deliver unto the said Henry Laurens Toomer as aforesaid, the following named ninety-one negro male and female slaves, to-wit: [giving their names]: To have and to hold the said slaves as above named and numbered, together with the future...