10 S.C. 308 | S.C. | 1878
The opinion of the Court was delivered by
The only exception taken in this case is to the refusal by the Judge to charge the jury “that, even should they believe the testimony of the defendant, if the plaintiff, James B. Reeves, had no notice or knowledge of the alleged fraud or of the alleged trust in favor of the defendant before his purchase of the land at Sheriff’s sale, then their verdict should be for plaintiff, especially if they found that there was laches or negligence on the part of the defendant in the prevention of such alleged fraud or in the discovery of such alleged trusts.”
The defendant testified that she “ forbid the sale at Sheriff’s sale,” and that “ Reeves was present when she forbid the sale.” That was actual notice. If the jury believed “the testimony of the defendant,” the conclusion that Reeves did have notice is unavoidable. The charge requested was, in effect, “that, even should the plaintiff have had notice, if the plaintiff had no notice, &c.” Such a charge would have been wholly incongruous, could only have misled the jury and was properly refused in toto by the Judge. It is useless to say that the latter portion of the charge requested may have been unobjectionable. If¿ followed as an incident to the first, or was so intended, and must stand or fall with it. If the entire charge, as requested, is refused, it is the duty of the Attorney, not of the Judge, to sever the request if it contain distinct propositions and present them separately. There can then be no mistake as to what is asked or what is refused. It may be that the plaintiff did mean to take exception to the ruling of the Judge with regard “to the introduction of evidence tending to show fraud in the deed from Amanda Sims to Blackmon, there being no fraud alleged in the answer, but simply a general denial.” The exception, if taken, is
The judgment is affirmed.
Motion refused.
