56 Ga. 258 | Ga. | 1876
This was a claim case, on the trial of which the jury, under the charge of the court, returned a verdict finding the property levied on not subject. The plaintiff made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the plaintiff excepted.
It appears from the evidence in the record that on the 19th of October, 1866, Graham, the plaintiff, sued out an attachment against H. M. Gay, the defendant, who was a non-resident of the state, returnable to the semi-annual term of the county court of Jasper county, in 1867, which was levied on six hundred and fifty acres of land as the property of the defendant, Gay, which was claimed by Campbell, as trustee for his wife and children. The plaintiff alleged in his declaration founded on the attachment, that the defendant, Gay, was indebted to him in the sum of $1,069 70, besides interest, on a promissory note signed by C. E. F. W. Campbell, agent of said Gay, which Gay refuses to pay, a copy of which note was attached to the plaintiff’s declaration, and is in the following words and figures: “By the -25th day of December next, we, or either of us, promise to pay Bostwick & Graham, or bearer, the sum of $1,069 70 for value received; March 28th, 1861.” Signed by C. E. F. W. Campbell. Upon this declaration a verdict and judgment was obtained against Gay to be levied on the land attached as the property of Gay. The claimant being no party to that judgment attacked it on the ground that there was nothing on the face of the record of that judgment which could have authorized the county court to have rendered it against the property of Gay, the defendant in attachment, but on the contrary the record affirmatively shows
1, 2. We find no error in admitting parol evidence of the contents of the lost deed under the facts of the case as disclosed in the record, nor in admitting in evidence the record of the power of attorney as a circumstance going to show that the original power of attorney alleged to have been lost had been in existence. ,
3. The preliminary inquiry as to the loss of the paper and the exercise of proper diligence to lay the foundation for the introduction of such evidence, is a question which is addressed to the sound discretion of the judge according to the peculiar circumstances of the case: 1 Greenleaf’s Evidence, section 558. We think, however, that the court erred in its charge to the jury, “that the court having let in evidence the contents of a paper upon proof of its loss, they could not consider whether it had been properly executed, or whether its loss had been
4. It would be extremely difficult for us to hold that the judgment rendered in the county court on the attachment and declaration founded thereon, against the property of Gay, on the note signed by Campbell, as the same appears on the face of the record, would bind his property as against the claimant, who was no party to that judgment, if the plaintiff, on the trial, had not gone behind it and put in issue the facts on which that judgment was based. The plaintiff’s attorney in that case was introduced as a witness, who testified (without any objection having been made as to the competency of his evidence under the pleadings in the case,) that in 1860 or 1861, he had sent to him a debt of record from Texas against H. M. Gay, for the purposes of making the money out of Gay, who was here; that he sued out a bail writ and had Gay arrested ; that he gave security and was released; that he had the debt perfectly secure; that Campbell, whose relations with witness were always very friendly, in the spring of 1861, came to him and told him that he was the agent of Gay, that Gay had left this land levied on, in his hands for the purpose of paying him this claim, and asked him to settle the bail case by taking his note as Gay’s agent, and to release the security, and that it should be paid out of Gay’s property which he had charge of. This was done, and as everything was done in haste and confusion on the eve of witness’ departure for the war, by mistake he did not sign it as agent, and witness was surprised when he next saw the note in 1866, to find that he had not signed it as agent. It was given for Gay’s debt, and not taken on Campbell individually. Witness treated him in signing the note as Gay’s agent, and would not have agreed to release the bail writ security for the debt, for Campbell’s individual debt, nor did he do so. Campbell testified that he
5. The uncontradicted evidence in the record is, that the money and property of the claimant’s wife paid for the land, and that the claimant, by himself or agents, had been in possession of the land from 1861 until the time of trial. This evidence of title on the part of the claimant, independent of any other, would have been sufficient to have enabled him to have attacked the plaintiff’s judgment, or to have shown any other valid legal reason why the land should not be made subject to the payment thereof. The claimant was in the possession of the land as the trustee of his wife and children, and had been since 1861, with the purchase money paid therefor out of the money and property of his wife. The court, in its charge, submitted the question of fraud to the consideration of the jury, and they having passed upon it and found in favor of the claimant, and although the court may have committed some errors in the progress of the trial,
Judgment affirmed.