Ward v. Lamberth

• Decision Date: 31 August 1860
• Citation: 31 Ga. 150
• Parties: WARD et al. vs. LAMBERTH.
• Court: Georgia Supreme Court

31 Ga. 150

WARD et al. vs. LAMBERTH.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

In Equity, in Clayton Superior Court. Tried before Judge Bull, at the May Term, 1860.

Joseph Lamberth filed his bill in equity, in the Superior Court of Fayette county, against Jesse Ward and John S. Westbrook, in which he complains:

That he was the security upon the guardian's bond of Gainey Westbrook, guardian of the minor children of one Isaiah Warren, deceased; that the said Gainey Westbrook, having failed to account to his said wards, in respect to such guardianship, was sued by them, and a judgment had against him for a considerable sum of money; that a fi. fa. issued from said judgment and was returned by the proper officer; that there was no property of the said Gainey Westbrook to satisfy the same; that a bill in equity was then filed against the said Gainey Westbrook, as principal, and the complainant, as security, on said guardian\'s bond, and at the September Term of the said Superior Court, in the year 1853, a decree was rendered in favor of the ordinary, for the use of the said minors, against the said Gainey Westbrook, as principal, and the complainant, as his security, for the sum of twelve hundred and fifty four dollars, with interest from the first day of March, 1852, and all cost; that an execution issued from said decree, and was levied on lot of land number 141, in the seventh district of said county, as the property of the said Gainey Westbrook, of which land the said Gainey Westbrook was then in possession, and had been for more than eighteen years, having bought and paid for the same with the funds of his said wards; that the said Gainey continued to reside upon, and possess, said land, until some time in the year 1856, when he died, leaving his family in possession of said land, and who were in possession up to the time of filing said bill; that, in the year 1843, the said Gainey being involved in debt, the said land was levied on, and sold at sheriff\'s sale, by virtue of a fi. fa. amounting to fifty or sixty dollars; that, by a verbal agreement between the said Gainey Westbrook and the said Jesse Ward, the said Jesse Ward bid off said lot of land, at said sale, for the benefit of the said Gainey, and was to hold the same as an indemnity, until the said Gainey should refund to him the purchase price, and the interest thereon; that under, and pursuant to such agreement, the said Ward bought said land for about fifty or sixty dollars, when it was worth one thousand dollars; that said Ward bought said land, and took the sheriff\'s deed thereto, by the agreement aforesaid, for the purpose of defrauding the creditors of the said Gainey, and shielding said land from the payment of said Gainey\'s debts; that, on the day of the sheriff\'s sale, or a short time thereafter, the said Gainey, by payments, reduced the said pur-chase price, due to said Ward, to about thirty or thirty-five dollars, which is all the claim or interest said Ward had to said land; that, when said land was levied on, by virtue of the fi. fa. issued from said decree against the said Gainey and the complainant, the said Ward interposed his claim to the same; that, upon the trial of the claim case, the plaintiff in fi. fa. was unable to condemn said property, and the same was found not subject to said fi. fa.; that Gainey Westbrook had been, for many years, and was then, wholly insolvent, having no property, except the land so held by Ward, as aforesaid, and that he died insolvent, and that no one has administered on his estate, or is likely to do so, as he left nothing to administer upon; that complainant has been compelled to pay off the said fi. fa. against the said Gainey and him, amounting to about seventeen hundred dollars; that the said lot of land, at the time of filing said bill, was worth thirteen hundred dollars, and is the only means left to the complainant to mitigate his loss as said Gainey\'s security; that complainant has been informed, and believes it to be true, that John S. Westbrook, a son of the said Gainey, is endeavoring to redeem said land, and that, by some arrangement, he has the title bond of said Ward for said land; that the said John S. Westbrook had full notice and actual knowledge of the fraudulent agreement between his said father and the said Ward, and is now endeavoring to perfect and perpetuate said fraud to the injury of the complainant.

The prayer of the bill is: That the defendants may discover the facts on oath; and that the sheriff's deed to Ward, and the bond for titles from Ward to John S. Westbrook, may be set aside and be delivered up to be cancelled; and that the said lot of land may be sold, and the proceeds applied first to the payment of the balance of the purchase price due to said Ward, and then to the payment (as far as it will extend) of the fi. fa. against the said Gainey and complainant; and for general relief.

The answers of the defendants deny that any such agreement as charged in the bill, ever was made between said Ward and the said Gainey, and that, if the same ever existed, John S. Westbrook had no notice or knowledge of the same, but that Ward bought the lot of land for himself alone. They also deny that Gainey Westbrook ever paid Ward any of the purchase money for said land. They also deny thatthe land was worth one thousand dollars, when sold by the sheriff, but that it was worth only about two hundred dollars. They also deny that Gainey Westbrook remained in possession of said land after the sheriff\'s sale, under any such agreement as charged, but insist, that he was the tenant of Ward, paying and promising rent up to the time Ward bargained the land to John S. Westbrook, and that after that time the said Gainey and his family remained on the land by the permission of the said John S. Westbrook.

The defendants, substantially, admit or ignore all the other material facts in the bill, but insist that the verbal agreement, charged in the bill, is void, because against the statute of frauds, and also insist that complainant, having failed to file his bill until after the trial of said claim case, that he is estopped and barred by the judgment in said claim case.

After the bill and answers were read, the complainant introduced the following testimony:

That, about the time of filing this bill, the complainant paid to the plaintiff's attorney the full amount of the fi. fa. in favor of the ordinary, for the use of the minors of Isaiah Warren against Gainey Westbrook, principal, and complainant, as security, amounting to about seventeen hundred dollars; that the defendant, Jesse Ward, told Thomas J. Hood, that he held the lot of land in dispute, and that he was holding it for the benefit of Gainey Westbrook and family; that Westbrook had paid all up but a small remnant, and that, when that was paid, he, Ward, intended to make a deed to the boys, so that it should be equally divided amongst them; that, on the same day, when what Ward had said was communicated to John S. Westbrook, he called upon the witness to bear the conversation and declarations of Ward in mind, as there might, some day, be a lawsuit about it, and that he, Westbrook, believed Ward to be mean enough, at some future day, to try to defraud the children out of the land; that, at different times, between the years 1852 and 1854, the defendant, Ward, told Tandy D. King, that he bought the land in dispute at sheriff's sale, and that some thirty or thirty-five dollars of the purchase money was still owing to him, and that, if he could get the money that was due him, that he had advanced toward the land, and could get back his bond that he had given to some of the Westbrooks for thetitle of said land, he would make a deed; that, in frequent conversations with said King, in the years 1855 and 1856, the said Ward also told King, that, if the complainant would pay him three hundred dollars, he would make him a deed to the land, and risk his bond for titles; that Jesse Ward and Gainey Westbrook called on William J. Russell, the clerk of the Superior Court, to go to his office to see the amount of a bill of cost that had accrued in and about holding said Westbrook\'s land; that the witness showed them the bill of cost, and that Ward said to Westbrook that he had that bill of cost, and some twenty-five or thirty dollars\' attorney\'s fee, and that that bill of cost must be paid by him, Westbrook, and that, when that was paid, the land was his, West-brook\'s, and that he, Ward, would make a deed to any one for him; that this occurred in the year 1851.

The complainant then closed his testimony and the defendants introduced the following testimony, to wit:

A note, signed by Gainey Westbrook, payable to Jesse Ward, or bearer, dated 10th of March, 1843, and due the 25th of December, 1843, for twenty-five dollars, with a credit thereon of fifteen dollars, dated 12th of June, 1844.

Also a note, signed by said Gainey Westbrook, payable to said Ward, or bearer, dated the 4th of January, 1844, and due the 25th of December, 1844, for twenty-five dollars, with a credit thereon of twenty dollars, dated the 11th of March, 1845.

Both of these notes purported on their face to have been given for the rent of lot of land number 141, in the seventh district of Fayette county.

Also a bond, signed by Jesse Ward, dated 26th of December, 1846, reciting a sale of said land by Ward to John S. Westbrook, for the sum of eighty dollars, and conditioned to make to said John S. Westbrook a title when the said purchase money should be paid.

Also the testimony of Bryan A. Westbrook, the son of Gainey Westbrook, and brother of John S. Westbrook, who testified: that, in 1852. he rented seventy acres of the lot in dispute from John S. Westbrook, and cultivated it that year, and paid him eighty dollars for it; that from the sheriff's sale, in 1843, up to the sale from Ward to John S. Westbrook, the witness never knew his father to lay any claim to the...