25 Ga. 28 | Ga. | 1858
By the Court.
delivering the opinion.
Suppose it be true that the boy Cyrus was sold by the son? in the lifetime of the father, although there is positive and unequivocal proof that he was in the possession of the father at the time of his death, still there is testimony enough in support of the father’s title to carry the case to the jury.
Perhaps as an abstract proposition, or one as applicable to parties generally, who are litigating respecting personal property, this charge would be obnoxious to the criticism made upon it by defendant’s counsel, and could hardly be sustained. But understanding it as we do, and as made in reference to the facts of the case, we are inclined to think it was right.
It appears from the testimony that a paper was carefully deposited in a cheese box, and locked up in the trunk of the lather, which he called a deed of gift to Robert, his son; complaining to his near neighbor, Mr. Farmer, that his son had not treated him well, he directed him where to find the paper, and it was deliberately burnt in the presence of the witness ; the father remarking at the time: “ This is an end of that. Bob shall not have my property.”
It is complained that the Court erred in holding that so far as the title depended upon this paper, it must appear that it was duly executed, and that the negro in dispute passed by it. Whereas, counsel contend that the paper having been destroyed by the father, every presumption is to be made against him as the spoliator of the title. But this argument assumes that this instrument was a title. That it had been duly executed and delivered. If it had always remained in the possession of the father, it was a nullity, and he had a right to destroy it. For myself I am fully persuaded that it never was delivered. I infer this not only from the careful custody and concealment of it by the father, but if it ever had been delivered the son knew it, of course, he being the
The truth is, he knew nothing of it, it not having been delivered. And yet all this disclosure shows that the father thought the property his, and that a conveyance from him was necessary to pass the title to his son. And it is a key to all the declarations he made, that these negroes belonged to his son. During the existence of this paper he so spoke oí them. And if they did not pass by this inchoate deed, when, and how did the son acquire the title ?
Upon the whole, the justice of the case is with the defend
Judgment affirmed.