44 Ga. 258 | Ga. | 1871
This bill admits that the defendant holds the deeds it seeks to have delivered up to be canceled, by their own act. It does not charge that they were made under a mistake, or procurred by any fraud, or that either of the signers were under any disability. They do not even assert that they were made in ignorance of any legal rights in the grantees. It is true the bill does charge that they were made without consideration, and adds that they are therefore void. But we do not agree with the conclusion thus arrived at. A deed to lands, fully executed, is not void for want of a valuable consideration. If there be a good consideration it is valid: Code, section 2648. And if the property be delivered in pursuance of the deed it is good without any consideration at all, as a gift: Code, section 2615. This bill does not set forth the deeds, and we are unable to say whether they purport to be for a valuable consideration or a good consideration, or whether they are based upon the mutual deeds made by all parties at the division. Nor does the bill say, in terms, that possession went in accordance with the deeds. But it is the duty of a complainant to state his own case, and the Court will not infer facts to help him. The bill says the defendant received these lands in the division, and the in
Why, then, should this solemn act of the parties be set aside? Was it done under a mistake ? Was there any deception ? Was it supposed, at the time, that there was other property, out of which the equality, so insisted upon, could be effected? Nothing of this kind is stated. We suspect the truth to be, that the parties have simply changed their minds; that when their lands came to be divided, all parties felt that the equality, the testator provided for, could be best secured by paying no attention to negro property, which this defendant had got in 1861. It had probably met with the same fate, as did the negroes which remained undistributed in the hands of the executrix. If this was the truth, it was eminently proper, as a matter of honest equity and brotherly fairness, that they should not be counted. And if they had been sold by him, and the other legatees, with a knowledge that he had received them without mistake, or fraud, or ignorance, consented that he should come in to a full share of the lands, and that consent has been carried into execution, we see no way to help them on their subsequent repentance. The bill seems to take special care not to set forth the whole of the case. It uses only general terms, and were it not that the bill is made an exhibit, we would not even know that this $1,100 00 was received by defendant in negroes, as provided by the will. The bill says that since the division of the land there is nothing left. But did not the complainants know that ? If they did not, and acted under a mistake, it ought to have been so stated in the bill. The fact that these lands were divided by the parties, and mutual deeds made, instead of having a division made under the law itself, indicates that they had all abandoned the idea of carrying out the letter of the will. As we have hinted, we suspect this bill to be an after-thought, and to be based on a disposition to take back an arrangement, fully executed and entered into freely, without fraud or mistake. We do not
Judgment affirmed.
