9 Ga. 151 | Ga. | 1850
By the Court.
delivering the opinion.
Abel Jackson filed his bill in the Superior Court of Murray County, charging, among other things, that on the.3d day of
To this bill the defendants severally answered. Frances Galt states, that being in want of a girl, she authorized her son, Edward M. Galt, to buy one for her; that in accordance with said instructions, he purchased the girl Caroline, at the sum of $400, which was considered, at the time, her full worth; that she took an absolute bill of sale to the girl, and for the better securing the title, required James McGehee, the father-in-law of the vendor, to join in the warranty; that she never considered Jackson her debtor, nor was there any other understanding con
Edward M. Galt admits by his answer, that as the agent of his mother, he bought Caroline of Abel Jackson, for $400, and paid him the money, and took possession of the girl, but positively denies that the money was advanced as a loan, but paid as the price of the property. He admits that, as the agent of his mother, he executed the bond mentioned in .the bill, for the re-sale of the girl, upon the terms stated. He states, that the main inducement for entering into this arrangement was, to defeat the lien of certain suits .which were about maturing to judgment against Jackson, as security for some one, whose name is not given,' and that it was well understood between, the parties, that the re-conveyance was to be made to no one except James McGehee, as that would defeat the only object of the bond, namely: the provision intended to be made for the use and benefit of Jackson’s family. He admits that the bond was tendered to him, at or about the time stipulated, but James McGehee regretted his inability to raise the money, and seemed much concerned lest the object of the bond should fail for want of the funds. He admits, also, that Jackson called, in company with a negro-trader, and expressed himself -ready to pay the $400, provided a title could be made directly to this speculator. Jackson did not pretend to have the bond. He admits that he refused to receive the money, or to re-convey the title to any one else than James Mc-Gehee, and for the purposes designated in the bond. He denies that any other tender was ever made by Jackson. He admits that Caroline, at the date of the sale, might, perhaps, have been worth a fraction over $400, though negroes were very low at that
James McGehee confirms the answer of Edward M. Galt, in every important point, and states farther, that he applied to Ahel Jackson to raise and furnish him with the money necessary to enable him to secure the title to the negro to his family, which he failed to procure. He tendered the bond, without the money,but Edward M. Galt refused to re-rconvey on that account, but expressed himself entirely ready and willing to comply with the terms of the bond, provided the $400 were refunded. He thinks $400, cash, was as much as the negro was worth at the time of the sale. He denies that Abel Jackson ever applied to him to maintain his (complainant’s) rights in the premises. He admits that he did ask him for a certificate, to the effect that Caroline was as much his property after as befme the transfer, which he refused to give, inasmuch as he should, by doing so, have attested a falsehood, wilfully and thoroughly.
The cause was submitted to the Jury upon the bill and answers and exhibits, to wit: the bond and bill of sale; admissions made by the parties at the hearing, and the testimony of Alfred M. Turner, who swore that he considered Caroline worth $550, in March, 1846, twelve months after the date of the bond.
The evidence being closed on both sides, counsel for the defendant requested the Court, in writing, to charge the Jury as follows:
1st. That if the money was not advanced by way of a loan, and the relation of debtor and creditor did not exist between complainant and Frances Galt, it was not a mortgage.
2d. That if the complainant had the privilege of refunding or not, if he pleased, in twelve months, and thereby entitle himself to a re-conveyance, it was a conditional sale.
3d. That if it was a conditional sale, Equity will not relieve the complainant, unless he performed the conditions on which the privilege of refunding depended.
4th. That this could only be done by tendering the money and bond, and consenting to take a conveyance oí the negro to James McGehee, for the me and benefit of complainant’s family,
5th. That if, from the evidence, the Jurybelieved that the object of the complainant was to defeat the lien of the judgments with which he was threatened, the contract was illegal, and that complainant, coming into Court with unclean hands, was not entitled to recover.
6th. That the answers of the defendants in relation to the value of the negro, are evidence, and that that evidence is conclusive, unless it is rebutted and destroyed by the testimony o'f two witnesses, or one witness, and other evidence equivalent to the testimony of another witness.
The Court refused to give the instructions as asked, but, on the contrary, replied, “Were I to charge at all, it would be against you.”
To the decision of the Court, refusing to give the instructions asked, and intimating a contrary opinion of the law, counsel for the defendants excepted, and now prosecute this writ of error.
Now, applying this test, either to the transaction as evidenced by the bond and bill of sale, or as confirmed by the uncontradicted corroborating testimony, is it not clear that it was a conditional
This, then, being a conditional sale, and Jackson having neglected to perform the condition on which the privilege of repurchasing depended, a Court of Equity will not relieve him. It is true, that within the twelve months, James McGehee tendered the bond, and expressed his anxiety to have the title to the property secured to Jackson’s family, but no money was paid, or offered to be paid. It is true, also, that Jackson announced that he was ready to advance the f400; but he insisted that the transfer should be absolutely and unconditionally made to a negro-trader, who accompanied him with the money for that purpose. To both of which applications, the simple - and only necessary reply of Mrs. Frances Galt, or Edward M. Galt, her agent, was “ non hcec in fcedera veni,” not unto any such stipulation as these have I come. The Master of the Rolls, in Davis vs. Thomas, (1 Russ. & Mylne's R. 506,) says, “ Where there is a privilege conferred, as provided the money be paid within a stated time, there, the party claiming that privilege must show that the money was paid accordingly; as in case of interest reserved on a loan, at five per cent, with a proviso, that four per cent, will be accepted, if paid within a limited time after it becomes due; or in the case of a covenant-for the renewal of a lease on the payment of a certain fine at a stated period. Here it is admitted, that the rent was not duly paid at the stipulated
For all these reasons, the judgment must be reversed.