Turnipseed v. McMath

13 Ala. 44 | Ala. | 1848

DARGAN, J.

It is unnecessary to refer to authorities to show, that if a release of a right is obtained by fraud, the release is void; for fraud will vitiate all instruments, however formal, or solemn in their character. The charge of the court, therefore, was not erroneous, if it was not given upon improper evidence; and the only question in the case, is, does the testimony of Hatter, conduce to show fraud; in other words, was it irrelevant, and therefore inadmissible 1

To determine on the relevancy of the testimony of Hatter, it is proper to consider of the condition of the parties, before the release was executed. McMath had sued Turnipseed, and the suit was pending. Tumipseed, in a conversation with witness, stated, that if McMath would dismiss his suit, and convey to him the slaves, he should have his family, the use of the negroes, and that he would put him on a place to live, &c. This, it is true, Turnipseed did not request witness to communicate to McMath, but he did communicate it, and in consequence of this communication, another interview took place between the witness, and the defendant Turnipseed, when Turnipseed stated, he would receive no communications from McMath, unless through a man of his own age, and named Roper, and others, through whom he would receive communications. This led to an interview between the plaintiff, Hatter,' and Roper, when the conversation before alluded to between Hatter and the defendant was talked over, and Roper agreed to visit Turnipseed, with the view to a reconciliation ; but Turnipseed declined receiving any proposition from McMath, or of having an interview with him, until he had executed the release, and dismissed the suits. McMath, anxious, it seems, to have his family restored to him, and to reconcile all difficulties, dismissed the suit, and executed the release. What impression then existed on the mind of McMath, and why did he do it ? It was because he had been informed of what Turnipseed, his father-in-law, had said to Hatter and to Roper, and Turnipseed knew that the conversation he had with Hatter, had been communicated to plaintiff. The fact that Hatter visited him, and wished to communicate to him what McMath was willing to do, is eivdence at least to go to the jury, as conducive to show that Turnipseed knew, when he accepted the release, that it was executed in consequence of impressions made on the mind of McMath, by his own words, communicated, it is true, without any request of Turnipseed, but producing the same effect on the mind of McMath, as if he had requested them to be communicated. With the knowledge, therefore, of the impressions on the mind of McMath, that in consideration of the release, he (Turnipseed) would endeavor to re-unite McMath and his family, and that he would provide for them, as stated, he accepted the release. Has he endeavored in any manner to carry out the expectations of McMath, created by him, under the influence of which the release was executed ? If he has, the record does not show it; but on the contrary, after expressing himself satisfied, he says, there are some things about which my family must be satisfied, and this is all that he has doue. Under all the proof, then, we draw these conclusions: The testimony of Hatter, in connection with all the proof, tends to show, that the release was executed and delivered by McMath, under the impression that Turnipseed would permit, or bring about a re-union between McMath and his family. It tends further to show, that Turnipseed knew that this impression existed on the mind of McMath, that he knew that his (Turnipseed’s) words had been repeated to him, (McMath) and had produced those impressions. There is not the slightest evidence that Turnipseed ever used any effort to comply with the wishes or expectation of the plaintiff; under these circumstances, we cannot pronounce the testimony irrelevant. It is indeed but slight, yet it cannot be altogether rejected. It was proper to refer it to the jury, to be by them weighed. They could attach such weight to it as they deemed right. The court therefore did not err, in permitting the testimony of Hatter, under all the circumstances, to go to the jury, and his charge to the jury was entirely correct. The judgment is therefore affirmed.