Morgan v. Jones

24 Ga. 155 | Ga. | 1858

McDonald, J.

By the Court delivering the opinion.

[1.] The first error complained of in the record is the rejection of the letters of administration granted to the plaintiff in error, on the estate of his deceased wife. They were offered in support of his title to the property sued for. Up to the time of his tendering them in 'evidence, he had established nothing more than a life estate in his wife, and that having terminated at her death, the letters were not evidence, and were properly rejected by the Court.

[2.] We think that the proof proposed to be made by the plaintiff in error was sufficient to lay a foundation for the admission of secondary evidence of the deed for negro Katey, and other negroes and property, in trust, &c., and that the copy deed from the records in Laurens county ought to have been admitted. The original had been in the possession of the plaintiff in error, and had' been taken, surreptitiously, from him, and had been seen in possession of the counsel of the opposite party, and was offered in evidence on a former trial. The Court refused to admit the copy, on the ground that the party could not be permitted to prove, by his own oath, under such circumstances, the existence of the original. We think he committed error in thus ruling. The party’s affidavit was sufficient. But the record of the paper was some evidence of its existence. The Act of 1819, authorized the recording. Edginton vs. Nixon, 5 Bing. N. C. 316; Bousfield vs. Godfrey, 15 E. C. L. Rep. 485. But this was a case in which the party might have been ruled to produce the original, and for the Court to have passed a formal order to read a copy in evidence. The affidavit of the party would have been sufficient evidence upon which to proceed summarily against the opposite party, to produce the deed in Court.

[3] The counsel for plaintiff in error moved the Court to compel the counsel of the defendant in error to answer, under the foregoing circumstances, if he had the original deed of gift in his possession, and to produce it, if in Court. The Court refused the motion. In this, we think the Court below erred. The counsel ought to have been compelled to answer if he had in Court the said deed, and if the facts upon which it was alleged the possession had been acquired, were not controverted, an order to produce it ought to have been granted.

[4.] The fourth ground is not certified to by the Court, and cannot therefore be considered.

[5.] The plaintiff did not make the proof preliminary to the admission of the copy deed of gift offered in evidence, that the original was not in his possession, power, or custody, nor was notice given.

The copy, on these grounds, was properly rejected.

The first charge given by the Court was unobjectionable, with the exception of the supererogatory and unnecessary remark, that “if the Court errs there is a higher tribunal.” This is certainly not the law of the cose,.and might, induce the jury to be less particular in scrutinizing the facts and making a careful application of the principles of law, as given to them in charge by the Court.

The second charge complained of was rather more favorable to the plaintiff in error than the defendants, and there is , no error materially affecting the merits of the case.

[6.] There is no evidence in the record, that the admissions •of the plaintiff in error that Katy and her family belonged to his children, came to the knowledge of Jones, before his intermarriage with thedaughter, and on that ground the charge was wrong, but if there had been such evidence, and there had been further proof that Jones had heard such admissions* and on the strength of them, he had married the daughter of the plaintiff in error, the charge that the plaintiff in error was bound by them was still erroneous. If a man marries a lady-under such circumstances, when the statements are not made to induce him to contract marriage, it is his own folly.

A parent is not bound by every idle rumor which may be circulated in the community, in regard to the property of his children, nor by his own casual remarks without meaning or object. To bind him they must be made as a matter of contract, or in a manner, and with an intention, to induce the person to act on them.

[7.] The Court charged the jury, on the request of the plaintiff in error, to which the defendant in error, it is alleged, makes exception, substantially correct. The request* itself, was not strictly in accordance with the law, as it has been administered in such cases. To make a parol gift there must be a delivery, and from, the request, it is to be presumed that Binah did not accompany Morgan and his wife when they moved to themselves, but that she went to them after-wards. The record is silent as to the precise time that she went to them, nor does it state in what capacity she went* whether as a gift or a loan. There is no evidence that he claimed her, either for himself or his wife, prior to the execution of the deed of gift in April, 1826. He offered in evidence the copy of an instrument purporting to be a deed of gift, bearing date in 1S20, but that was rejected, and he offered no further proof as to its contents. It was manifest to the Court that the plaintiff in error claimed that there was a deed of gift executed to his wife, and the Court properly held that that instrument should be produced. If it cannot be produced, the party, if he can, should make proof of its contents, as the best evidence of the nature of the title which passed to Mrs. Morgan.

The remark of the Court to the jury, “ that if a party, by misfortune or accident, fails to get or produce all the evidence that might have been produced, it is not the fault of the Court or jury,” is made a ground of error. The remark involves no legal principle, nor was it calculated to enlighten the jury in regard to any matter of law or fact in issue before them. It was simply useless and improper, as tending to no beneficial end, and had as well been omitted. It cannot, however be made a ground for reversing the judgment of the Court.

It is alleged as error also, that the Court did not allow the defendant to continue the cause. It does not appear in the record that he applied for a continuance. -

The evidence in the record is not sufficient to enable us to pass upon the verdict. The plaintiffs in the Court below claim in their declaration, one-fifth of the negroes sued for, and one-fifth of the hire, and the jury find for them one-fifth of both negroes and hire, but there is nothing in the record to show that there was any evidence! before the jury on that point. It is not shown how many children Mrs. Morgan left at the time of her death. The first witness sworn for the plaintiffs was her son, and Mrs. Jones, one of the plaintiffs, was her daughter. Beyond this, nothing appears in the record on that point.

We reverse the judgment on the grounds mentioned in this opinion.

Judgment reversed.