McCune v. McMichael

29 Ga. 312 | Ga. | 1859

— Lumpkin J.

By the Court.

delivering the opinion.

We see no error in the record in this case, except the refusal of the Court to charge as requested; that if the defendant when he purchased, had knowledge of the plaintiff’s title; Ruth J. McCune is not estopped from recovering the property, notwithstanding her declarations to Judge Stark and others, unless it was shown that McMichael had knowledge of these declarations, and acted upon them in buying the negroes at the administrator’s sale. I state the substance or legal tenor of the request only.

Upon the next trial of this case, the first question to be found is, was the surrender of the life estate by Mrs. McCune to the remaindermen, absolute and unconditional? If so, there is an end of the controversy. She is not entitled to recover. If, however, she reserved the right to reclaim the property, she is entitled to recover, unless she assented to the sale of the whole interest in the negroes, by the administrator of her son, and induced or encouraged McMichael to buy. In that event she is equally barred, and cannot maintain the action which she has instituted.

Now, while it may be conjectured that she did this, and the moral conviction is strong that she did, still there is no evidence that her acts or declarations, as testified to by Judge Stark, Col. Reid and wife, and others, were communicated to McMichael and came to his knowledge. And in the absence of any such proof, it must be presumed, that he acted upon his own knowledge and judgment. He admits in writing, that he took his negroes conditionally, hut he is not sued forlthem, and his son swears, that Rufus W. McCune did so likewise. It is for these negroes, bought at the sale, that McMichael is sued. And that all the parties were present when this arrangement was agreed upon.

The issues therefore to he submitted to a future jury, are few and simple, and should he directly passed upon, without being encumbered by so much rubbish.

Judgment reversed.