Oliver v. Stone

24 Ga. 63 | Ga. | 1858

Penning, J.

By the Court. delivering the opinion.

Oliver and wife, and Lassiter and wife, claim, not as heirs of Jeremiah Burke, the father of the two wives, but as donees of Dennis Glisson, the grand-father of the two wives— donees under a deed of gift made, as is alleged, by Dennis Glisson.

Stone and wife deny the existence of any such deed of gift They say, that if any such deed was ever written and signed, by Dennis Glisson, it was never'delivered by him.

The Court below excluded this deed or paper, from the jury, thinking, that the evidence was hot sufficient to show the paper to have been delivered. • This seems to be the ground on which the Court put its final decision — a decision made after all the evidence was out.

Was there evidence sufficient to show a delivery of the paper ? This, then, is thé question.

The evidence of the two of the subscribing witnesses, examined, was to this effect: that Dennis Glisson “signed, sealed and acknowledged” this, and other “deeds” “of like character,” conveying property to other children or to grandchildren; that they signed the “deeds” as witnesses, and at his request; that he said this was his deed; that he took all of the deeds into his own possession after signing them and carried them away with him; that none of the grantees, or any one representing a grantee, was present.

The evidence of Jacob G. Glisson was, that this paper and others of like character, to other children, was in the possession of Dennis Glisson at his death, being found, after his death, in his desk; that these papers were all torn up by the heirs, who agreed among themselves, that the property should be equally distributed among them; that he gathered up the fragments of this paper, a'nd pasted them on another sheet of paper; that this paper was recorded, but not until after the death of Dennis Glisson.

This witness also testified, that, on the marriage of Mrs. Stone with Burke, her first husband, she carried the negroes mentioned in fhis paper home with her; that they remained in her possession till Burke’s death, when old Mr. Glisson carried her, her two daughters, and the negroes, back to his house, where they remained till Stone’s marriage with her, when the negroes were carried home by Mr. and Mrs Stone.

This T believe is all of the evidence, that bears upon the question of the delivery of the paper.

And this, we think, is not sufficient to show a delivery of the paper. This shows, that the paper was never delivered to any one, for any purpose, but that it was always kept by the person who signed it, in his own possession along with other papers of a similar character, signed by him at the same time. Had he parted with dominion over the paper? Had he lost the power of revoking it? We think not. Acton vs. Woodgate, 2 Myl. & Keene; Garrard, vs. Lord Lauderdale, 3 Sim.; Wallyn vs. Coutts, 3 Mer. 707; Williams vs. Everett, 14 East 582. In Garnors vs. Knight, 12 Eng. Com. L. R., there was, first, a delivery of the paper to the sister of the donor, with directions to keep it, and a statement, that it belonged to the donee; secondly,, an understanding between the donor and donee, that the former was to secure the latter. Still, I must say, that I think Garnors & Knight somewhat difficult to uphold.

But it was insisted that the possession of the negroes, was in accordance with the paper, and that this fact was sufficient to make out the delivery of the paper. But is it true, that the possession of the negroes was in accordance with the paper ? The possession commenced in Mrs. Stone with her first marriage — a time long before the date of the paper. There is no evidence to show, that she ever surrendered this possession to her father, the signer of the paper; nor is there any, to show that she ever recognized the deed, or even knew of its existence before his death. True, she went with the negroes to his house to live with him, when her first husband died; but it is equally true, that when she married again she went away with the negroes; and there being nothing to show, that she knew of the existence of this paper, at this time, it is to be presumed, that she went away holding the negroes under the same title under which she had held them, when she came.

Then, it was said, that the paper had been recorded. But the act of recording did not take place, until after the death of the signer of the paper. The act therefore, could not be his act; and if not his act, it could not be an act that could affect him, or, the paper.

Upon the whole, then, we think, that the evidence was not sufficient to show a delivery of the paper. Consequently, we think, that the Court below did not err in .its final judgment made when all the evidence was out, excluding the paper from the jury.

It becomes unnecessary, therefore, to consider the previous judgments of the Court, made at successive stages of the evidence, excluding the paper.

Some interrogatories were excluded.

These, if admitted, would have proved, that the negroes belonged .exclusively to the two daughters of Mrs. Burke, (afterwards Mrs. Stone,) whereas the paper said, that the negroes belonged equally to her and the two daughters. The interrogatories, theréfore, could not have supported the paper, and the bill was founded solely upon the paper. We see no error, therefore, in the exclusion of the interrogatories.

We find nothing, then, to reverse, in the action of the Court below.

But we do not wish to be understood as intimating an opinion, that the plaintiffs in error, may not have a right of action as heirs of Jeremiah Burke. The question, whether they may, or may not, have such an action, is' not presented by their case as that now stands.

Judgment affirmed.