75 Ga. 392 | Ga. | 1885
Myra T. Hickson, as the widow and sole heir at law and distributee of Thomas Hickson, brought her bill against George H. Bryan, as his administrator, and against James M. Mobley, Reuben E. Mobley, Roland A. Russell and William M. Griggs, alleging, in substance, that Bryan, as such administrator, had wasted and converted to his own use, and had allowed his co-defendants to do so, much the larger portion of the assets belonging to the estate of her deceased husband, and praying that they, and each of them, might settle with and account to her for the property thus maladministered, and especially that the evidences of title by which the defendants, James M. and Reuben E. Mobley,' held certain lands belonging to her said husband’s estate, and which she alleged they had obtained fraudulently, might be set aside, and that they be decreed to turn over the same, and to account with and pay to her the rents, issues and profits found to be due for the use thereof. The defendants answered the bill, and among other defences set up the lapse of time and the statute of limitations.
1. As to the exception that the court erred in rejecting a letter offered in evidence by complainant, and written by general Benning to her kinsman, Mr. Moses, in relation to some litigation in which he had been engaged as her counsel, we think there was nothing in it; neither of the defendants was in any way connected with the correspondence, and as to them, it was res inter alios aota and hearsay. So of the altered record from Harris superior court, as to the lot of land on which Simpson’s heirs enforced a vendor’s lien, it was not shown that either of the defendants had the remotest connection with that alteration, or that the same was in any manner fraudulent or unauthorized.
2. The rejection of Bryan’s answer, when offered as evidence against the other defendants, if error at all, was not material. It was already before the jury, and if the complainant could use it in the manner and for the purposes indicated, under the rules and limitations of the law, as laid down in the Code and former decisions of this court, she was at liberty to resort to it on the hearing before the jury. Generally the answer of one defendant is not evidence for or against his co-defendants; but to this general rule there are exceptions, one of which is, where the relation of partners exists between them, or where the defendant against whom it is admitted is in privity with his co-defendant. Clayton vs. Thompson, 13 Ga., 206; Adkins vs. Paul, 32 Id., 219; Code, §3107. Whether such privity existed between Bryan and any of his co-defendants would depend in some measure on the proof as to their complicity with him in wasting and mismanaging the estate confided to him to administer.
3. Should the court, at the close of complainant’s evidence, have dismissed her case for the want of proof to
We think there was enough in the proofs and in the pleadings to have carried the case lo the jury, and if not rebutted by counter-evidence to have sustained a decree in complainant’s favor. In 'short, that she made a good prima facie case, and that there was error in taking it from the jury and dismissing it out of court.
Though an answer was waived, this did not deprive the complainant of the privilege-of availing herself of admissions made in it; and although the whole answer is before the jury, and the admissions are qualified by other parts of it, they are not bound to believe such qualifications. Sims vs. Ferrill, 45 Ga., 585, and this rule has been laid down both in earlier and later cases in this court, and may be considered as established law.
It is the peculiar province of the jury to pass upon the facts in questions of fraud, under proper instructions from the court. Unless the facts from which fraud is inferred are undisputed, it is never a question of law to be passed upon solely by the court, and the same rule applies where fraud and concealment are replied to a plea of the statute of limitations. “ If no facts are involved but the simple one of the length of time which has elapsed since the contract was made, the question of reasonable time is one of law, but where disputed facts, involving questions of excuse of the time of discovering the fraud, or the title, are to be passed upon, the question is one of mixed law and fact, and is for the jury under instructions ” Bigelow on Frauds, pp. 448, 449, and citations in foot-note. Our own statute is confirmatory of this view: “ If the defend-. ant, or those under whom he claims, has been guilty of a fraud, by which the plaintiff has been debarred or deterred
As this case goes back for another hearing, we have abstained from going into the particulars presented by these answers and the evidence had at the trial. We have done so purposely, as we would not, on this ex parte showing, do anything that might prej udice the rights of either of the parties, and have considered and determined only such questions of law as seemed indispensable to the case in its further progress.
We suggest, without, however, directing it, that the proper disposition to make of this case would be to refer it to a master, with authority given to pass both upon questions of law and fact. In this way it can be more • thoroughly investigated and examined than could possibly be the case on a trial during the term of the court.
Judgment reversed.