Wife v. Greene

• Court: Georgia Supreme Court
• Writing for the Court: Lumpkin, J
• Citation: Wife v. Greene, 16 Ga. 49 (Ga. 1854)
• Decision Date: 31 August 1854
• Docket Number: No. 10.,10.
• Parties: Thomas B. Wyche and Wife, plaintiffs in error. vs. Thomas B. Greene, defendant in error.

16 Ga. 49

Thomas B. Wyche and Wife, plaintiffs in error. vs. Thomas B. Greene, defendant in error.

No. 10.

Supreme Court of the State of Georgia

AUGUST TERM, 1854.

In Equity, in Upson Superior Court. Decision on demurrer, by Judge Starke, May Term, 1854.

This was a bill filed by Thomas P. Wyche and Adeline W. Wyche, his wife, against Thomas C. Greene of Upson county, and Elias McElvin of Decatur county. The bill states, that the complainants were intermarried in 1839; that Adeline W. is the child of Patience C. Greene, the wife of the defendant, and daughter of Batt Wyche, late of Montgomery county; that the defendant and Patience C. were married in 1814; that Patience died in 1848; that Batt Wyche, in 1817, and for some time previous thereto, entertained the wish and purpose to loan to his daughter, Patience C. for her life-time, four negro slaves, to wit: Sally, Moses, Ellick and Sealy, together with all their increase, previous and subsequent to that time; and at the death of his daughter, to give the said negroes and their increase, in fee-simple, to the children that were and might be born of the said Patience, at her death: the same to be divided, share and share alike among them, immediately upon her demise; that with the design of loaning and giving said negroes and their increase in manner aforesaid, and for the purpose of carrying the same into effect, the said Batt Wyche executed the following deed of gift:

"State of Georgia, Montgomery County:

Know all men by these presents that I, Batt Wyche, for and in consideration of the love and affection which I have and bear unto my well beloved daughter, Patience Clark Greene, and the issues of her body, do give, grant and relinquish unto the said Patience C.Greene and issue, four negro slaves, to wit: Sally, Moses, Ellick and Sealy, together with all their increase, heretofore and after these presents, the rights thereof whatsoever, unto the said slaves and increase, to have and to hold the said slaves and increase as aforesaid, unto the before-named Patience C.Greene and issues forever, freed and cleared of and from the claim of him, the said subscriber. In witness whereof, the said Batt Wyche has hereunto set his hand and seal, the 15th day of February 1817.

BATT WYCHE, [L. S.]

In presence of W. Conner, J. G. Conner, J. I. C.

"I make an addition to the within deed, of five hundred dollars, in place of one small negro and other things.

Given under my hand, this 6th day of October, 1817. To be paid next fall. BATT WYCHE."

Test, Wilson Conner, J. I. C."

"Received, the 12th of April, 1819, four hundred and fifty dollars of the above deed. THOMAS B. GREENE. "

"Received, June 2d, 1821, in full of the above, fifty dollars.

THOMAS B. GREENE."

The bill further charges, that on the day when said deed was executed, or about that time, that the said Batt Wyche, for the purposes hereinbefore stated, delivered the deed of gift to Greene, his son-in-law, who received the same, to be held for the use and benefit of his wife and children; and that he did, in point of fact, so hold said deed until the year 1824, when he gave up to the same to the administrator of Batt Wyche, to be used as a voucher or for some other purpose, unknown to the complainants; and that said instrument was found, in 1850 or 1851, among the papers of George Wyche, who is now dead, but who was one of the administrators of Batt Wyche; and that McElvin is the administrator of Batt Wyche. The bill further charges, that the four negroes mentioned in the deed, were delivered by Batt Wyche to Thomas B. Greene. It further charges, that the draftsman, in drawing said deed of gift, failed to use apt words to carry the design and purpose of Batt Wyche into effect, as clearly set forth; and that the scrivener, in framing the instrument, made a mistake in this; that instead of loaning the negroes and their increase to Patience C. Greene during her life, and at her death, giving the property in fee-simple to the children, the writer drew the deed so as to convey the negroes to Mrs. Greene, absolutely, and the issue of her body. The bill avers that this was the result of accident, and that Batt Wyche, at the time of executing and delivering said deed of gift, intended the same to be a conveyance by deed of gift, that loaned the four slaves and increase to Mrs. Greene for her life only, and at her death, gave the same to her children, to be equally divided between them, share and share alike. The bill further charges, that Thomas B. Greene, when thedeed was executed, and when he took the same, had notice that the deed of gift was intended, by Batt Wyche, to convey the negroes as before stated; and that Batt Wyche, during his life-time understood and believed that the deed of gift was drawn, in conformity with the purpose which he had in view in executing it; and that Greene received the deed, with notice of this fact, and so held the same, with the negroes, for the benefit of his wife and children, as before charged.

The bill further stated, that the increase of Sally and Sealy, amounted to twenty-nine in number, giving their names and description—all of which, together with Ellick, were in the possession of defendant, in March, 1850; that he had given Moses to one Eliazur Adams, one of the descendants of his wife; that the complainants instituted their action of trover, returnable to the April Term, 1850, of Upson Superior Court, for the recovery of the said thirty-one slaves, against the said Greene—upon which, a trial was had in October thereafter, when the Circuit Judge refused to allow the complainants to show the alleged mistake, and decided that the deed of gift vested an absolute title to the negroes, in Thomas B. Greene; and that in consequence of said decision, a verdict and Judgment were rendered in favor of the defendant in the action. The bill charges that an appeal has been entered, and that the same is now pending, and which will stand for trial at the ensuing term of the Superior Court, unless restrained, and that complainants will be again compelled to submit to a defeat, unless they can have the deed of gift reformed, so as to represent and carry out the design of Batt Wyche in making the same, at the time it was executed and delivered. The complainants pray for an injunction, and that the mistake may be corrected and the writing reformed.

On the 18th September, 1851, the bill was presented by the complainants to Judge Starke, in vacation, at Chambers, for his sanction, who refused to grant the same. This decision of Judge Starke was, upon writ of error, reversed by the Supreme Court at Macon, February Term, 1852.

On the 31st day of August, 1852, Greene answered the bill, and McElvin filed his answer in March, 1853.

On the 6th day of May, 1854, complainants filed an amendment to their bill, alleging the execution of an addition of five hundred dollars to the said deed of gift, by Batt Wyche, and which was endorsed upon said deed; that the same had been paid to Greene, for the use and benefit of his wife and children, as charged in the bill; that they were entitled to receive the same, with interest thereon, from the death of Patience C."

At the May Term, 1854, of said Superior Court of Upson, complainants further amended their bill, in which amendment they charge that B. Wyche, himself, drew the deed of gift; that he was not skilled in drawing such instruments, and that it was his intention so to have drawn the same, as to have conveyed an estate for life, in said negroes, to his daughter, Patience C, and at her death, in fee-simple to her children; and that by a mistake of the said Batt Wyche, in the use of words not proper and technical for the conveyance of such meaning, the said intentions of said Batt Wyche, failed to be equally expressed therein.

After the filing of the amendments, the defendant, Thomas B. Greene, demurred to said amendments, and to the whole bill as amended, upon the grounds—

1st. Because the bill, as amended, is multifarious.

2d. Because said bill, as amended, presents a case in which Equity will not interfere to reform the written instrument, under which complainants claim, for the purpose of enabling the complainants to recover thereon.

3d. Because it does not appear, by the bill or amendments, that Batt Wyche was the owner of the negroes specified in the deed of gift: nor does it appear who was the owner of said negroes, or that the said Thomas Greene was not their owner at and before the execution of the said deed of gift."

After argument of the demurrer, and before the decision of the Court, thereon, complainants were allowed to amend their bill further—in which amendment they charged, "that at the time of the execution of said deed of gift, the titles to said ne-groes was in the said Batt Wyche, and that Greene had notice of the same at the time; that when said Batt Wyche drew and executed said deed of gift, it was his intention so to draft it, that it would convey to said Patience C, an estate for her life in and to the said negroes and increase, and at her death, an estate in fee-simple, to her children; and that Greene then and there well knew that such was the intention of the said Batt Wyche, and that he received said deed with such knowledge as aforesaid."

The Court sustained the demurrer, and dismissed the bill and amendments, and Counsel for complainant excepted.

Gibson & Hill, for plaintiff in error.

Floyd & Chappell, for defendant in error.

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

The plaintiff in error filed a bill against Thomas B. Greene and Elias McElvin, as administrator of Batt Wyche, deceased, for the purpose of having a deed of gift reformed, on the ground of mistake in drafting the same.

The bill, as it stood originally, was to the effect, that Thomas B. Greene's deceased wife, Patience C. was the daughter of Batt Wyche of Montgomery county; that Thomas B. Greene intermarried with his wife in 1814, and by her, had a numerous family...