Williams v. Halsted

• Decision Date: 28 February 1849
• Docket Number: No. 47.,47.
• Citation: 6 Ga. 365
• Court: Georgia Supreme Court
• Parties: Shepherd Williams, senr., plaintiff in error. vs. C. & G. H. Kelsey & Halsted, defendants in error.

6 Ga. 365

Shepherd Williams, senr., plaintiff in error. vs. C. & G. H. Kelsey & Halsted, defendants in error.

No. 47.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1849.

Levy and claim, in Houston Superior Court. Tried before Judge Floyd, October Term, 1848.

On the 25th day of March, 1839, Shepherd Williams, senior, executed to Thomas Williams, an instrument obligating himself to pay certain debts therein specified, for Thomas Williams among which was a debt due the Central Bank. The several items of indebtedness specified in the instrument, were consolidated, and a note for $5,124.48, was given by Thomas Williams to Shepherd Williams, sen. At the same time, for the securing the payment of the note, Thomas Williams executed to Shepherd Williams, sen., a deed of mortgage, for certain property therein specified, among which were three slaves, Tom, Sally and Harriet. The mortgage was afterwards foreclosed, and the slaves, Tom and Sally, were sold under a fi. fa. issued thereon, by the Sheriff of Houston county, on the 2d day of June, 1840, and Harriet on the 5th day of January, 1841, and purchased by Shepherd Williams, sen., through his agent, Washington Williams.

On the 21st day of August, 1846, an execution issued from the Superior Court of Houston county, in favor of the defendants in error, against T. & S. Williams, jr.—was levied on the slaves, Tom, Sally and Harriet, as the property of Thomas Williams, which were claimed by Shepherd Williams, sen., plaintiff in error.

At October Term, 1848, of Houston Superior Court, the cause stood for trial on the appeal.

The plaintiffs in execution offered in evidence their fi. fa. and proved that the slaves were in the possession of Thomas Williams at the date of the levy, and had remained in his possession since the sale under the mortgage fi. fa. and closed.

The claimant introduced in evidence, the mortgage and the fi. fa. issued on foreclosure thereof, and the bill of sale to the negroes, from the Sheriff of Houston county, to Shepherd Williams, sen.; also the agreement or receipt from Shepherd Wil-lliams to Thomas Williams, specifying the debts for which the note, the foundation of the mortgage, was given.

The claimant then offered in evidence the testimony of R. M. Charlton, taken by commission, to prove that a judgment had been obtained by him, as attorney for the Central Bank, against Shepherd Williams and others, on the note specified in the agreement between Shepherd and Thomas Williams; also, to prove the payment of $400 thereon, by the son of claimant, who stated, at the time, that the money paid belonged to his father; which testimony was objected to by the plaintiffs, on the ground that the statements of witness in relation to the note, were not of his personal knowledge, but only as appeared from the docket kept by the late firm of Charlton and Ward, attorneys at law; and that the sayings of the claimant\'s son, at the time of the payment of the $400, were inadmissible. The objection was sustained, and the claimant excepted.

The claimant then offered in evidence, the testimony of A. M. Nisbet, taken by commission, to prove the discount and renewals of a note made by claimant, for the benefit of Thomas Williams, to the Central Bank. Plaintiffs objected to that portion of the testimony derived from the books and records of the Bank; which objection was sustained by the. Court, and the claimant excepted.

After the claimant had submitted that portion of the testimony of A. M. Nisbet, not excluded, in answer to the direct interrogatories, and also the testimony of another witness, taken by commission, in answer to the direct interrogatories, the plaintiffs withdrew the cross interrogatories and answers, to which claimant objected. The Court overruled the objection and the claimant excepted.

The claimant offered to introduce Thomas Williams, the defendant in execution, to prove his indebtedness to the claimant at the time the mortgage was given, &c. The plaintiffs objected. The Court sustained the objection and the claimant excepted.

The claimant then offered to prove the sayings of Thomas Williams, in relation to the ownership of the slaves, since the sale under the mortgage fi. fa. The plaintiffs objected, and the Court sustained the objection, and the claimant excepted. The claimant closed, when

Plaintiffs introduced a witness, to prove that he (witness) rented from Thomas Williams a lot of land, specified in the mortgage, for the year 1847, and that witness paid him therefore. Claimant objected to the testimony. The objection was overruled by the Court, and the complainant excepted.

The witness was then asked by claimant, if, in the negotiations previous to the final contract between himself and Thomas Williams in relation to the rent of the land, Williams did not stale that he was acting as agent. Plaintiffs objected to the question. The Court sustained the objection and claimant excepted.

The Court charged the Jury, that if they believed, from the testimony, that Thomas Williams was really and in good faith indebted to Shepherd Williams, sen., he had a right to secure him by mortgage, provided the mortgage was not executed fraudulently, and for the purpose of delaying creditors, but that they must believe, from the testimony, that S. Williams had paid off and discharged the items of indebtedness, specified in the agreement produced in evidence, and if claimant had not shown the payment of said items, he had not shown such an indebtedness as would remove the presumption of fraud; that the retention of possession, after an absolute sale, was a badge of fraud, and, unexplained, sufficient of itself to justify the Jury in condemning the property; that the fact that the sale was by the Sheriff, under execution, did not alter the rule; that the possession of the former owner, after the Sheriff's sale, was still a badge of fraud; that if the purchase had been made by one not a creditor, and who advanced the money on the purchase, that would have been a circumstance which would have gone far to remove the presumption of fraud; but that here it was a creditor who purchased, and the fact that such purchase Was made at Sheriff's sale, under execution, was not a circumstance to remove the presumption of fraud, created by the possession remaining in the former owner of the property, the defendant in execution; that there was no distinction in this State, between a Sheriff's sale, under execution, and a private sale by the owner of property, so as to remove the presumption of fraud, arising from retention of possession.

To which said opinions and charges of the Court, the claimant excepted, and upon the said several exceptions, assigned errors.

J. B. Hines and C. B. Strong, for plaintiff in error.

1st. The Court erred in ruling out that part of the testimony of Bobert M. Charlton and John E. Ward, relating to sayings of the son of Shepherd Williams, made at the time of the transaction to which those sayings referred. 2 Starkie on Ev. 61, toppage. 2 Pet. 363. 6 Cowen, 99. 12 Wheat. 468. 3 Brod. & Bing. 5 Esp. 74. 1 Greenlf. 137.

2d. The Court erred in ruling out testimony of Robert M. Charlton and John E. Ward, in so far as relates to books kept by the firm of Charlton & Ward.

3d. The Court erred in ruling out testimony of A. M. Nisbet, so far as it relates to books kept by the Central Bank. Prince's Dig. 77.

4th. The Court erred in allowing the defendants to withdraw cross questions and answers, addressed by them to various witnesses, after the plaintiff in error had finished presenting the direct answers.

5th. The Court erred in excluding the testimony of Thomas Williams, the defendant in fi. fa. 1 Richardson, 242.

6th. The Court erred in requiring the plaintiff in error to prove the payment of the notes by Shepherd Williams, plaintiff in error, which were part of the consideration of the note made by Thomas Williams to Shepherd, and on which the mortgage was grounded. Philp. Ev. 3, 1228, note 961. 7 John. 304. 14 Ib. 310. Prince's Dig. 424. 7 Cowen, 360. 2 John. 177.

7th. The Court erred in excluding testimony of the sayings of the defendant in fi. fa. explaining the situation of the property and the nature of his possession. 2 Term, 53. 1 Johns. 340. 1 Esp. 458. 2 Green. 125.

8th. The Court erred in admitting testimony of Saunders, to prove that Williams had rented the lot of land to him, and received the rent therefor, which was included in the mortgage of personal property.

9th. The Court erred in ruling out the cross questions offered to be put to Saunders by counsel for plaintiff in error.

10th. The Court erred in ruling that in Georgia, the possession of the property being left in defendant after sale by a fi. fa. was badge of fraud. 4 Barn. & Cres. 433. 8 Taunt". 841. 2 Bos. & Pull. 59. 1 Ld. Raym. 724. 1 S. L. Cases 1. 5 Rand. 211. 2 Term R. 587. 6 Rand, 285.

S. D. Killen, for defendants.

The Circuit Judge properly excluded that portion of the testimony of Robert M. Charlton and J. E. Ward, referred to in the 1st and 2d assignment.

It is a well settled rule of law, that the best attainable evidence shall be adduced to prove every disputed fact. 1 Starkie, 500. 1 Greenlf. Ev. 82.

Was this the best evidence of which the case was susceptible? 1 Greenlf. Ev. 436, '7, '8. 1 Starkie, 35 to 40.

3d. The same doctrine will apply, with equal if not more force, to the testimony of Nisbet, the Cashier of the Central Bank, referred to in the 3d assignment, and supported by 1 Greenlf. Ev. 484. Prince, 220.

4th. The privilege of withdrawing cross interrogatories is supported by the practice of the Courts, from time immemorial.

5th. The issue below was, fraud or no fraud, between the defendant in fi. fa. and the claimant, and the presumptions are in the affirmative. Peck vs. Land, 2 Kelly, 1, &c.

6th. The sayings of the defendant in fi. fa. will be excluded after the rising of the lis mota, as in this issue. 1 Greenlf. Ev. 131, '2, '3.

7th. The acts of a party in...