6 Ga. 515 | Ga. | 1849
By the Court.
delivering the opinion.
Many interesting questions are raised in this record.
We prefer, however, to put the decision of this point upon broader ground, and one more in accordance with the truth of the case. It is not pretended that the payment proven was made to Eobinson, but to Lamar. Unless, therefore, the claimant can connect Lamar with Eobinson, the transaction was wholly gratuitous as between Schly and Lamar; and there is nothing in the testimony to defeat the lien of the execution, as in favor of the original plaintiff, Eobinson. Lamar is a mere interloper,and the money paid to him is no satisfaction of the debt.
Why the Judge should have fixed upon one-half the value, or any other definite proportion, as the test of inadequacy, under any circumstances, we are somewhat at a loss to understand. It is true, a moiety was the criterion of the Civil Law, when applied to immovable property; but even by that code, sales oí personal property were usually considered without redress, where there was no fraud, and the parties were turned over to the power of conscience and morals and religion.
The deed from Mary D. Moore to John Schly, purports to be founded on “ friendship and esteem, love and affection, and the many services rendered” by the grantee, who was an attorney; and while it is not denied that where the relation of client and attorney has completely ceased, a client may be generous to her attorney or counsel, as to any one else. No undue influence can in such case be rationally supposed longer to exist. Cicero, the father of his country, and second founder of Rome, whose eloquence and patriotism have been the admiration of every age and country, was enriched by the most munificent gifts from the patrons whom he had professionally served. Still, in all contracts between attorney and client, if made especially while the relation
Now, the refusal of the Court to charge as requested, and the charge as given, can be justified only on the ground, that the first conveyance from Mary D. Moore to John Schly, was a testamentary paper. Is this its character as to the slaves in controversy ? To read this instrument correctly, the latter clause, reserving a
What, then, is the proper interpretation of this paper, thus read? That it was intended to be a deed, is apparent from its face. It does not purport to be signed, sealed and published, as a will, but it is delivered as a deed. Of the numerous tests which have been suggested to distinguish between a deed and a will, we take this to be the plainest and broadest. Does the instrument, regardless of its form, pass a present interest? If this paper does not, language would seem to be incapable of effecting this object. Mary D. Moore does not convey such of these slaves as she may have at her death, but she conveys them now, by name, together with their future increase. As to the cattle, horses, furniture, money, bank stock, and real estate, she only disposes of so much, and such portions thereof, as may remain on hand at her death; but not so as to the slaves — she carves out of these a life estate to herself merely.
Had Mary D. Moore attempted to do any thing with this property, after the conveyance was executed, inconsistent with the title in Schly, the remainder-man, a bill in the nature of a bill quia timet would have been entertained for the purpose of securing him. 3 Call, 25. 2 Munf. 162. Or had her life estate in these slaves been sold by the Sheriff, under execution against her, John Schly would, under our Statute, have had the right to require the purchasers to have given security for its forthcoming at the death of the defendant.
I repeat, that inasmuch as Mary D. Moore disposes only of so much of the cattle, horses, furniture, money, bank stock, and real estate, as may remain at her death, doubts might arise whether these clauses were not void for uncertainty. They certainly would be, if the instrument, as to them, was held to be a deed. We believe, however, that upon a fair construction of the instrument, it is testamentary as to these.
If this view be correct, it is obvious that the charge as asked ought to have been given, and the instructions submitted were erroneous.
See Dudley vs. Mallery, 4 Ga. Rep. 52. — [Rep.