10 Ga. 429 | Ga. | 1851
By the Court.
delivering the opinion.
It will not be disputed, I apprehend, that it was entirely competent for the trustee to sell this property, with the consent and approbation of the cestui que trust, there being no restriction in the deed, or limitation over to children or third persons, and with Ray’s testimony before them, uncontradicted and unimpeached, the Jury were not only justified in rendering the verdict which they did, but they could have legally returned none other.
Taking this view of the case, we deem it unnecessary to consider the other points contained in the bill of exceptions. I would remark, however, that as it respects the charge of the Court, instead of fault being found with it by the plaintiff in error, it occurs to us that complaint might properly have come from the other side; for while the door was thrown wide open to assail this transaction for fraud or other cause, and the Jury were left free and untrammelled, and clothed with plenary powers to set aside the judicial sale as void, the Judge omitted to instruct them, that notwithstanding this judicial sale -was void, for want of power to grant it, notice to the cestui que trust, fraud, the misapplication of the proceeds, or any other cause, still, if Mrs. Morris voluntarily assented to it, and the transferwas made at her instance, the title was divested, and the present trustee could not recover the property.
In Brazier vs. Clap, (5 Mass. R. 1,) Sedgwick, J. said, “ Even if fault could justly be found with the Judge’s direction, I do not think that a new trial ought to be granted. A new trial ought never to be granted, when the Court is perfectly satisfied that on a second trial the same verdict must, by law, be given, although there might have been some mistake by the Judge at the trial.”
In Springer vs. Bowdoniliam, (7 Greenl. Rep. 442,) the Supreme Court of Maine held, that admitting a question at Law had been erroneously submitted to the Jury, the Court would not, for that cause, disturb the verdict, provided they were satisfied that it was correct.
In Aldrop vs. Magill, (4 Day. 42,) the Court, after recapitulating the facts, say, “ Whether the charge of the Court was perfectly correct in point of law, it is unnecessary to determine. Justice is done and a new trial ought not to be granted.”