31 Ga. 1 | Ga. | 1860
delivering the opinion.
James D. Erwin, the father of Mrs. Sarah Powell, the complainant in this Bill, on the first day of March, 1849, conveyed to the defendant in the Bill, in trust for Mrs. Sarah Powell and the wife of Jacob S. P. Powell, thirty negroes. The defendant accepted the trust and entered upon the performance of its duties. Subsequently, and on the 7th day of March, 1849, Jacob S. P. Powell conveyed to the defendant, Wade, seven negroes, in consideration of $2,000; afterwards, and about the last of March, 1849, one Robert Martin conveyed to defendant fifteen negroes, in consideration of $3,100 paid him by defendant therefor. These fifteen negroes had been, previously,, the property of Jacob S. P. Powell, but had been sold at .Sheriff’s sale, as the property of Powell, and bid off by Martin. This $3,100, paid by defendant for the negroes, seems to have been the amount that Martin had paid for the negroes at Sheriff’s sale, and defendant advanced him the money and took the title to the negroes, for the benefit of Powell, so- that Powell was to- have the negroes when this advance was reimbursed, by him, to Wade. On the nth April, 1849, the defendant, Wade, entered into an agreement with Jacob S. P. Powell, in respect to these two last lots of negroes, in which the purchase of them by Wade is recited, and Wade agrees to let Powell take possession and have the use of the negroes, he paying interest on the amount then due by him to Wade, which is stated at $5,800; and whenever all that amount, principal and interest, should be paid, the defendant agreed to deed and settle all of said negroes and their issue and increase’ as the said Jacob S. P. Powell should name. Now, -it will be observed, up to .this time, that the complainant had no- title, or claim, either equitable or otherwise, to these negroes, or any part thereof; but, so far as they were concerned, and the rights and debts growing out of the several advances, conveyances and-agreement, were all between the defendant Wade and Jacob S. P. Powell. The negroes of Mrs. Powell, mentioned in her father’s deed for her use, were not involved in any of these transactions, advances or liabilities.
In January, 1851, defendant and Powell make a new arrangement, in respect to those negroes embraced in the agreement of the nth of April, 1849, by which that agreement
On the 4th of November, 1851, the defendant enters into a new agreement, and this time the agreement is directly with the complainant, and Jacob S. P. Powell is a witness, in which it is stated that A'Vade, the defendant, owns the thirteen negroes mentioned in the last agreement, and he agrees that complainant may work them with the trust negroes (those she derived from her father), by paying to defendant $500 on the xst of January, 1852, and $2,700 in five annual installments, the interest to be paid annually — in all $3,200 — and if the said Sarah A. Powell paid said amounts, then the negroes to be hers, as the rest of her property is; if she does not, then the agreement to be null and void, and defendant at liberty to make his money out of the negroes.
The parties subsequently, on the 7th of February, 1853,
Another ground of error is, that no account was taken by the arbitrators, in the award, of the hire and labor of the negroes of complainant when used by defendant. It would be a sufficient answer to this ground that the bill of review does not state that it was made to appear to the arbitrators that anything was due to complainant on this account.' But we do not choose to meet it in that way. The award shows on its face that credit was given for every dollar of hire due by the defendant, and in such a way that complainant got the benefit of it to her separate use.
Take another view. Suppose we should vacate the award and send the parties back to settle their rights in the Courts, what would be the result ? The title of defendant to the eleven negroes, that he took absolutely from Powell in January, 1851, would be obliged to be sustained: there can not be a shadow of pretence for setting it aside. Mrs. Powell had not the slightest interest in them nor never had, and as to Powell,
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed; upon the ground that the Court erred in overruling the demurrer to the plaintiff’s bill. .The Court should have sustained the demurrer, and dismissed the bill.