Reinhart v. Miller

22 Ga. 402 | Ga. | 1857

By the Court.

McDonald, J.

delivering the opinion.

This bill of exceptions throws upon this Court, pressed as it is for time, and oppressed by labor, to look through the entire record, to search out the errors complained of, when according to the statute, the errors should be plainly and distinctly set forth; and I will add, according to my construction of the Act, should be as methodically set forth as they formerly were in the assignment of errors, which is now done away.

The first exceptions apparent in this record are, that there were interlineations apparent upon the face of the marriage contract offered in evidence, and on that account the defendant objected to reading it in evidence until they were explained.

2d. That there was no writing, under hand and seal, to Miller from his sister authorizing him to execute the contract, and it was not done in her presence.

3d. That the contract was not recorded in the county of the husband’s residence.

[l.] The decision of the Court overruling these objections to the evidence is excepted to.

In regard to the first, the nature of the interlineations does not appear in the record, whether they altered the instrument in a material part or not. That was a matter, however, to be referred to the jury, and whether the alterations were made since the execution of the instrument, and whether they found contrary to evidence in that respect, we cannot tell, as the interlineations may have been of such a description, that there was no temptation to the party to make them.

[2.] John Miller signed his sister’s name to the contract. It is not signed as agent.

A stranger may seal a deed, “ by the allowance or commandment precedent, or agreement subsequent, of him that is to seal it, before the delivery of it, and it is as well as if the party did seal it himself.” 1 Shep. Touch. 57. The evidence was express as to the “commandment precedent to the delivery” by the party who was to sign it. Her brother went to the door of the room where Cassa Miller was dressing, and requested her to sign the contract. He must have had it with him. She authorized him to sign her name. It was signed near the yard on the gate-post and under circumstances which warranted the Court to submit the contract and the evidence to the jury.

[3.] The Act in regard to recording marriage settlements was intended for the exclusive benefit of bona fide purchasers and creditors. The instrument is valid between the parties. For the reason already assigned, the first request of plaintiff ought not to have been given in charge to the jury.

[4.] There was no ground for the second request This was an action of trover for the recovery of negroes. The deed was good without a witness for the personalty. It was also admissible in evidence, whether recorded or not, if the execution was proven.

[5.] There was no occasion for a ratification in this case, of any sort, under the view wo have taken of it. It was Cassa Miller’s own act, performed by her brother, by her command. But had a ratification been necessary, it was ratified by the act of the party. The instrument was proven to have-been executed. Cassa Miller had declared that she would not many Reinhart until he did execute -it. She did marry him. From these facts it must be inferred that the deed had been, executed before the marriage, and that she knew it.

[6.] There is no authority for saying that all sealed instruments must be signed, sealed and delivered in the presence of two witnesses. It is true in regard to conveyances of land and donations of slaves under our statutes and judicial decisions, but it does not go beyond.

[7.] In this case negroes alone were the subject of litigation, but if the land also had been in controversy, there was no necessity for further proof to send the-contract to the jury. If the subscribing witness to an instrument denies or forgets his attestation, circumstances may be resorted to for proof of its execution. 4 Wendell 282; Jackson vs. Christman 8; The King vs. The inhabitants of Longor, 4 Barn, Adol. 647. The attesting witnesses to the marriage contract differ in their testimony in this case in regard to the attestation. One of the witnesses could not write. He testifies that Alexander M. Wright, when the contract was executed, was two or three yards from them, in the door yard, and that he did not sign it.

Lewis jBeacham, the other witness, could write, and testifies to the execution of the instrument and to his own signature, and to the contents, but yet says that he believes Wright was a subscribing witness, but may be mistaken. He does not even recollect that Gay was present or a witness, nor does he remember that his name was to the contract when he signed; and still Gay’s name is directly above his on the instrument, and Wright’s name does not appear. The evidence of Davis, in this state of things, that he had heard the plaintiff say that he had a marriage contract with his wife, was entitled to great consideration as evidence of its due execution.

[8.] Whether the witnesses knew of the authority of, or direction to Miller to sign, has nothing to do with the validity of the contract. If he was directed to sign it, and signed agreeably to the direction, in such manner as to make his signing a valid execution of it, it was sufficient. But these things should, of course, have been made out on the trial, by either direct or circumstantial proof, and the circumstances testified to by the witnesses were before the jury.

[9.] The proof proposed to be made by Charles L. Holmes, was hearsay evidence. What Wright said could not affect the interest of either party.

[10.] What the presiding Judge stated in the hearing of the jury, and which is set forth in the fourth ground of the motion for a new trial, was said necessarily in deciding a motion made by counsel to reject the marriage contract as evidence, on the ground that its execution had not been proven.

The fifth ground of the motion for a new trial, was overruled by the Court below, because it did not truly state the ground of the decision. The motion for a continuance, and the grounds on which it was made are not set forth in the record. It is a conditional exception.

We think that the verdict of the jury was warranted by the evidence, the equity and justice of the case, and that the judgment of the Court below must therefore be affirmed.

Judgment affirmed.