Wellborn v. Others

• Decision Date: 28 February 1855
• Docket Number: No. 50.,50.
• Citation: 17 Ga. 267
• Parties: C. T. Wellborn, plaintiff in error. vs. W. W. Weaver and others, defendants.
• Court: Georgia Supreme Court

17 Ga. 267

C. T. Wellborn, plaintiff in error. vs. W. W. Weaver and others, defendants.

No. 50.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1855.

Trover, in Coweta Superior Court. Tried before Judge Warner, September Term, 1854.

This was an action to recover two negroes, a woman and her son, brought by the plaintiffs, children of the wife of defendant by a former marriage, against C. T. Wellborn.

The negroes had formerly been the property of Joshua Elder, deceased. He delivered them to his daughter Sarah, on her marriage with one Seaborn B. Garnett, the father of plaintiffs. As to whether she took them as a loan or gift, there was much conflicting testimony. The negroes remained in her possession until after Garnett's death, and until within a few days of Mrs. Garnett's marriage to Wellborn, the defendant, which was in 1838, when they were taken away from her by Joshua Elder. In 1842, Joshua Elder executed a deed of gift, in the usual form, conveying the negroes to the plaintiffs. This deed he gave to one of the subscribing witnesses, with instructions to have it recorded and to hold it as his, Elder's agent, until he, Elder, should be dead, and then to deliver it to the donees; which the person to whom it was intrusted did, as directed. This deed and the circumstances of its delivery were in evidence.

The negroes continued in the possession of Joshua Elder untill 1850, when he sent the negro woman to defendant's, to wait on his, defendant's, wife; and the boy afterwards ran away and went to defendant's who refused to give him up. Joshua Elder died in 1851, and this suit was instituted by the children of defendant's wife, the donees in the deed above mentioned, to recover the property, and the facts aforesaid appeared in evidence. The Jury found a verdict for the plaintiffs; whereupon, defendant moved for a new trial, stating in his rule the following grounds: 1st. Because the verdict is contrary to the evidence and the charge of the Court, the Court having charged the Jury, among other things, that if they believed, from the evidence, that Joshua Elder had given the property in dispute to Mrs. Garnett, afterwards Mrs. Wellborn, before her marriage with defendant; and that said Elder took possession of the said property, on the day of the marriage, or so shortly before that there was not a sufficient reasonable time for Mrs. Garnett (now Mrs. Wellborn) to have instituted suit in her own right against said Elder, before her marriage with defendant, for said property; that in that case, the Statute of Limitations would not commence to run against the rights of Mrs. Garnett, (now Mrs. Wellborn); as before stated, the property being in her own right, and she being a feme covert, the Statute would not run during her coverture.

2d. And further contrary to the charge of the Court and the evidence in this: the Court having charged the Jury, among other things, that if they should be of the opinion, from the evidence, that it was a gift from Elder to Mrs. Garnett (now Mrs. Wellborn) as before stated; and also, that the Statute of Limitations did commence to run against the rights of Mrs. Garnett (afterwards Mrs. Wellborn) when Elder took possession of the property in 1838; that they should find for the defendant, unless they should be of the opinion, further, from the evidence, that Elder had had the possession of the property, and held the same adversely to the rights of Mrs. Garnett, afterwards Mrs. Wellborn, for four years before he conveyed the same to the plaintiffs.

3d. Because the Court erred in refusing to charge the Jury, that the paper which was relied on by plaintiffs as title in them, was testamentary in its character and effect, and could not be proof of title in plaintiffs, without first being proven in the Court of Ordinary, according to law.

4th. Because the Court erred in charging the Jury, that the said paper was not testamentary under the evidence adduced in this case, and in order to make it so, it must appear to be such from the paper itself.

5th. Because the Court erred in admitting the evidence.of Asa Candler and others, to prove the declaration of Elder before the making the deed to plaintiffs, said evidence being objected to by defendant's Counsel, at the time it was offered and admitted by the Court; the declarations being made while in possession of the property and exercising acts of ownership over it, showing title in himself.

Which motion for a new trial was overruled by the Court, and on this decision error is assigned.

Sims & Hammond; Buchanan, for plaintiff.

Doyal; Speer, for defendant.

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

A new trial will not be granted, because the verdict of the Jury is contrary to the charge of the Court, provided the verdict is according to law and the charge is against it.

Now we are clear that the saving in the Statute of Limitations in favor of feme coverts, does not apply where the feme was dis-covert at the time her right of action accrued, notwithstanding she may have married, subsequently, on the same day.

In others words, marriage may be postponed, but not the Statute of Limitations. And then the Act of 1817 (Cobb's Digest, 567), which stops the running of the Statute as to idiots, lunatics and infants, does not extend to married women, notwithstanding the intervening disability of coverture.

Moreover, the negroes in dispute were taken possession of by Joshua Elder before the marriage of his daughter, Mrs. Garnett, with Wellborn, the defendant; and that being so, the better opinion is, not only that Wellborn might have sued, alone, but that he must have done so. And the reason assigned is, because the law transfers the property to him, and the wife had no interest in it. (See 1 Chitty's Blackstone, note, p. 360. Bacon's Abr. Title Detinue, A. Buller's Nisi Prius, 50. 1 Salk. 164. Seal Contra. Reports Tern. p. Harder, 120.)

If this be so, not only did the Statute of Limitations begin to run against the wife dum sola and continued, albeit the intervening coverture; but it commenced to run against the husband also, from the time of the marriage, which makes the Statutory title of Joshua Elder and those claiming under him complete.

What is the true character of the paper executed by Joshua Elder to his grand-children? Is it a deed or a testament? There is a conflict of authority upon this point; and our opinion has not been formed without some hesitancy.

The Circuit Court held that it was a deed, and the current of American cases is certainly with the decision. Wheelright vs. Wheelright, 2 Mass. R. 447, is the leading authority on that side, and has been cited and followed as law, without questioning, in all the subsequent adjudications. It was an application for partition. The petitioners produced, in support of their claim, two deeds purporting to be conveyances of the premises; and the dispute was, whether or not the circumstances attending their execution amounted to a delivery, which it was admitted was essential to their operation. The evidence was this: Nathaniel Wells, Esq., testified, that in the year 1795, Joseph Wheelright, one of the petitioners, requested him, by direction from his father, as he said, to write these two deeds; that having written them, the father called upon him and signed and sealed the two deeds in the presence of the witnesses and his brother, since deceased, and delivered them to him for the use of the grantees; that it was the intent of the parties that the grantor should have the use of the premises during his life; and as some of the grantees were minors, and could not secure the use to him, the deeds were delivered as escrows, as he expressed it, to he delivered, by him, to the grantees, upon the death of the grantor, which the witness had accordingly done.

Upon this proof, Chief Justice Parsons conceded that the objection, that the testimony did not sufficiently show that these deeds were delivered by the grantor, in his life time, to the grantees or any person authorized by them to receive the same, deserved much consideration. Still, he held the law to be well settled, that if the grantor deliver any writing, as his deed, to a third person, to be delivered over, by him, to the grantee, on some future event, it is the grantee's deed present-ly, and the third person is the trustee of it for the grantee. And in support of this conclusion, the learned Chief Justice refers to Perkins, 143-4, and Bushell vs. Pasmore (6 Modern, 217-\'8.)

I would merely remark, that in all the cases quoted, the papers were delivered, confessedly, as escrows.

In the second edition of the Massachusetts Reports, the propriety of this opinion is doubted, in the modest form of a Quere appended in a note to the case, by the editor, Mr. Rand.

Can it be sustained upon principle? We do not controvert the doctrine, that all such acts as give estates directly or by way of use, are good at first, and that the thing granted, when the deed of grant is delivered to the grantee's use, shall vest in the grantee before he has notice of the grant, or agree to accept of the thing granted; so that, if lands be granted immediately, by feoffment, gift, &c, the thing granted shall be said to be in the grantee, and the grant good before notice or agreement, until disagreement. (Shep. Touch. 285. 2 Ventris, 198. Shoner, 308.) That every man is presumed to assent to a grant made for his benefit. (1 Bonn. 502-'3, and 518, 520.) That while it is true that a deed takes effect from the delivery, which may be by words without act, or by act without words; that such delivery may be either to the grantee or to a third person, who has no special authority, for the use of the grantee. (Shep. Touch. 57 and 58. Cowper's R. 204. 12 Johns. 536. 1 N. H. R. 357.)

And farther, that it is not essential to the valid delivery of a deed, that the grantee be present and that it be accepted by him, personally. (12 Johns. 536. 12 Mass. R. 460. 17 do. 220. 9 do. 310. ...