Cameron v. Ward, No. 37

No. 37 | Ga. | Mar 15, 1857

By the Court.

Lumpkin, J.

delivering the opinion.

A motion was made to dismiss this case, for want of a bill of exceptions.

By the 9th and last section of the Act of 1856, it is provided that the case shall be heard upon the errors as set forth in the bill of exceptions, which shall be plainly and distinctly stated. Pamphlet Jlcts,p. 201. To give to the late statute the utmost latitude of construction, we take it, that the bill of exceptions must show that the decisions complained of as erroneous, were made by the Court, and that the only proof of this fact is the Judge’s certificate to this effect. In other words, it is incumbent on the plaintiff in error to make it appear affirmatively that the judgment of which he complains, was erroneous — and that, failing in this, the judgment will be affirmed. The presumption is, that the judgment is right.

In this case there was a motion for a new trial; but the rule nisi was overruled. The motion was predicated upon six grounds.

1st. Because the Court erred in refusing to charge the jury as requested by defendants’ solicitor — which request is set forth in full.

2d. 3d. 4th. In charging the jury as therein set forth.

5th. In rejecting certain portions of the testimony of the witnesses Spencer J. James and James Askew.

6th. Because the decree of the jury was contrary to law and evidence and the charge of the Court.

A brief of the testimony, as agreed upon by counsel, accompanied the application for a new trial.

Now, the presiding Judge, in his certificate, adopts this brief of the testimony, annexed to the rule nisi, for a new trial, as a part of the bill of exceptions. And by a fair interpretation, we hold, that he “intended thereby to say, that it contains all the evidence material to a clear understanding of the errors complained of. He also certifies that he gave the charges as set forth and stated in the motion for a new trial. But he no where states or admits that he refused to give the charge requested by the defendants’ solicitor, or rejected any part of the proof offered on the trial.

Can this Court then hear and determine the errors complained of in these two particulars ? We think not, most manifestly. And this is no technical objection. It is fundamental and vital. Suppose we were to reverse the judgment below, because the Circuit Judge had refused to charge as requested, or had ruled out a portion of the testimony of James and Askew ? — might he not — might not the complainant in the Court below justly complain that we had overruled the Judge upon a matter which never transpired in the case ? It may be replied, that these grounds were taken in the rule nisi for a new trial. True, but the Court refused to entertain this motion; and it may be, (for he does not give the reasons for his judgment,) because these very grounds were wrongfully inserted, and not true in point of fact. One thing is certain, that while the Judge adopts the brief of evidence as a part of the bill of exceptions, and certifies, expressly, that he gave the charges as set forth in the motion for a new trial, he is silent as to the complaint, that he refused to charge. And the maxim expressio unius est exclusio alterius, would seem to appty.

With the strong desire ever manifested by this Court, to hear cases upon their merits, and with an honest purpose to execute the laws of the Legislature, in the spirit in which they were enacted, we are compelled to restrict this bill of exceptions to the legality of the instructions given to the jury, and to the finding of the jury upon the proof,as contained in the record.

What are the facts ofthis case ? Stephen Ward,the complainant in the bill, had purchased the lot of land in dispute, in 1835, of one Thomas Walker, for $750; that he went into immediate possession, and so continued until the latter part of 1847; that in 1835, upon inquiring of the Surveyor General, he was informed that the grant had been issued before the purchase by Walker, his grantor, of Christian Thomas, the previous owner; that not doubting but that the grant had issued from the State, he made valuable improvements upon the land ; that in 1847, to his surprise, he learned that the lot was not granted when he purchased of Walker, but had been granted to one Thomas Whitaker, under the then late law, and sold by him to Pleasant Compton; that in November, 1847, he went to Milledgeville, when Compton, under the peculiar circumstances of the case, agreed to let him have the lot for #200. That Cameron and Johnson being there as members of the Legislature, and his immediate Representatives, in whom he had entire confidence, advised him to pay the #200, and save hishomestead ; lacking the money, they agreed to advance it; and for their security, to take the titles in their own names, which they agreed to re-convey to him, upon being refunded their mono3r with interest, when they returned homo from Milledgeville; that having that much more money than he needed to defray his expenses, he handed them #20.

About the last of December, 1847, expecting that Cameron and Johnson had returned from the Legislature, Ward borrowed the money and sent it by a friend to Cameron; but he had not got back. That shortly after, he was taken sick; but about the first of February, 1848, he procured the money to be again carried to Cameron, who informed the messenger, A. Wilkinson, that Johnson had sold the land to one William A. Spear. It seems that this sale was unknown to Cameron, at the time it was made; that he expressed himself dissatisfied with it, and insisted that Ward should have the land; Spear’s note was given inpayment; and Cameron never signed the deed until the month of November following. — long after suit had been instituted to enforce the specific performance of the contract. Cameron not only refused to unite at that time in the conveyance to Spear, but said it must be rescinded, and appealed to Johnson to that effect. Spear admitted to Stamps, before he purchased the land, that he knew of the agreement between Ward, Cameron and Johnson, and that he was to have the land, provided it was not redeemed by Ward. It is not pretended but that the only lien the defendants had on the land, was to sell and reimhurse themselves for the money advanced to Compton for and on account of Ward. The testimony of Garhey and others, puts this point beyond dispute.

What then is the law of this case ? It is wholly immaterial whether time was of the essence of the contract between the parties or not, if Ward, before the land was sold and paid for, tendered to Cameron and Johnson the $>180, paid out for him, with the. interest thereon; they were bound to receive it, and re-convey the title to him. And the proof is clear and conclusive that this was done. When Wilkinson called on Cameron with the money, and demanded a deed, Cameron was ignorant of the inchoate and incomplete contract between Johnson and Spear; Spear had full notice of Ward’s equity before he paid out his money — indeed, he knew of it before he and Johnson rushed with such suspicious haste into the trade. Why did he not retract ? Had the sale been consummated, and a joint deed executed, his conscience, wo apprehend, would be affected by the pre-existing equity between Ward and his vendors. Such, however, is not his position. His bargain was unfinished when the re-payment was tendered, and consequently the trust deed, .under which he was taking his title was functus officio and spent.

It is quite unnecessary, therefore, to enter into a critical examination of the charges complained of. This broad view overrides them all, and settles the rights of the parties upon the stable foundations of justice and good faith.

We see nothing in the verdict contrary to law or evidence, or the charge of the Court. It is in accordance both with the facts and the law, and should not be disturbed.

As to the instruction of the Court respecting the capacity of the agent, we see nothing to object to. He seems, drunk or sober, to have understood and executed with skill and fidelity, the business intrusted to his care. And as his principal does not repudiate his acts, there is no reason why the other parties should.

Judgment affirmed.