Irwin v. McKnight

76 Ga. 669 | Ga. | 1886

Hall, Justice.

From ihe confused manner in which the grounds of this motion for a new trial are presented, we cannot feel entirely satisfied that we get the precise questions intended to be made. If, however, we fail to reach them, we take no blame to ourselves. There is scarcely one of these grounds that is complete in itself, or that furnishes us with a connected view .of what the court certifies he really decided. In order to ascertain this, we have been compelled to refer to the voluminous corrections appended by the judge to the end of the motion. We have had occasion more than once to condemn this mode of making up a record,- and must again impress upon circuit judges and counsel the necessity of pursuing the requirments of the law in this respect. It is certainly incumbent upon parties alleging error to show it, and to secure this end with certainty, they are required to t: specify plainly,” not only “ the decision complained of,” but likewise “ the error alleged to exist” therein. Code, §4251. In this latter respect, the motion referred to in, and made a part of, the bill of exceptions, is singularly deficient-, and for ’ this reason we might, and perhaps should, take no fur'her cogniz mce of this case; but as we find no error in the record, and as we permitted the main questions that counsel consented were in the case to be fully argued, we will determine them. This, however, is done merely ex gratia, and must not in the future be cited as a precedent.

2. The principal question made was, whether the conveyance of the land claimed by the defendant in execution to the claimant was a Iona fide transaction to secure the latter against liabilities he had incurred for the former, or was made to delay, hinder or defraud creditors, and whether the fact of the defendant remaining in possession and using the land after the conveyance was so inconsistent with the deed to claimant as to raise, if unexplained, convincing evidence of its fraudulent character, when taken in connection with the near relationship of the parties— that of son-in-law and father-in-law,—and to require a diferent result from that reached by the jury. The claimant insisted that the defendant’s possession was not inconsistent with the deed, which he alleges was executed only as a security, and that he was not entitled to oust the defendant until he had discharged the debts for which he became liable, and that he did not assume the possession and control of the premises until he had paid these debts; that he had fully discharged them, and that they amounted to more than the land was worth. The jury took his view ot the matter, and found in his favor, and the judge who presided at the trial refused to disturb the verdict. In thus refusing, did the judge abuse his discretion? We are of the opinion he did not. There was not only enough evidence to sustain the verdict, but we are confident that it was in accordance with the weight of the evidence. Here, as in the case of Falvey vs. Adamson, 73 Ga., 498, we say “it is almost needless to remark that we will not interfere with the exercise of the judge’s discretion in any case, unless it plainly appears that it has been abused. The testimony, to say the least, leaves it doubtful whether the transaction in question was Iona fide or fraudulent; the' preponderance is rather in favor of its fairness..... We cannot say that the suspicious circumstances brought out by the plaintiffs’ evidence were not satisfactorily explained by the facts which the defendant (claimant here) adduced.” The judge heard that case both upon the law and facts, and we add, “Had a jury, trying this issue, reached this conclusion, and had the judge presiding at the trial been content to let the- verdict stand, we could not, without glaring inconsistency, and without reversing all our former decisions, interfere with his judgments.”

3. Under the law as it existed at the time this deed was made, it does not appear from the evidence that the dealings between the defendant and his creditors, to whom the claimant as his surety became bound, were in any manner affected or tainted with usury; or if such was the fact, that it was known to claimant either at that time or when he paid the debt. The deed, had it been given directly to the creditors of the defendant as a security for their claims, from aught that appears in the proof, would not have been rendered invalid on account of usury in its consideration. The plaintiffs in execution failed to show usury in it. It was n.ot made to secure these claims, but to indemnify the claimant as surety of the debtor on account of liabilities he had assumed for him. Under the circumstances disclosed, it was impossible, in any view we can take of the law, for usury to have entered into the transaction between these parties. When the claimant paid the debts of his principal and took the land in satisfaction, the deed became absolute ; it then ceased to be a security and became an indefeasible conveyance, and as such was received in satisfaction of the claimant’s demands. To such a contract the plea of usury, at the instance of a creditor of the party, or of the defendant himself, could not be set up.

4. With a view of securing the opening and conclusion in the argument of the case, claimant’s counsel announced that they would admit possession in the defendant at the time the levy was made and would assume the burthen of showing title in the claimant, and this the court permitted them to do. Both sides, however, introduced evidence on the point, and at the close of the testimony, the plaintiffs insisted upon the right to open and conclude, and after argument had, it was accorded to them. The claimant was then allowed, over the objection of plaintiffs, to withdraw his admission. This practice, though irregular, did no injury to plaintiffs; if they defeated the purpose for which the admission was made, they had no right to retain the admission itself. They were surely not entitled to the advantage which they would have had if the admission had not been made, as well as to that which the admission gave them; there was then no equivalent to the claimant for the point he had yielded. The plaintiffs had broken their bargain, and the other party was relieved from the obligation it imposed on him.

There is no other error in this long record that can avail the plaintiffs, if, indeed, there be any at all. The charge upon the main points in the case seems unexceptionable.

Judgment affirmed.