Ward v. Lamberth

31 Ga. 150 | Ga. | 1860

By the Court.

Jenkins, J.,

delivering the opinion.

The exceptions in this case go either to the charge of the Court, or to the verdict of the jury.. I will consider the former first, from number five to number eleven, both included, though this inverts the order observed in the bill of exceptions.

I do not deem it necessary to review these exceptions seriatim. The fifth and sixth complain of refusals by the Court to charge, as requested by defendants’ counsel.

We justify the refusals to charge, as requested, on the points embraced, because the charges asked were not pertinent to the issue, and . would, almost certainly, have confused the jury, and diverted their attention from- material to immaterial questions. We find no error in the charges positively given and exceptéd to.

The first, second and third exceptions assail the verdict of the jury as against law, against evidence, and as strongly and decidedly against the weight of evidence, and these we shall consider in connection.

We state the following proposition as the rule, which, in equity, should govern this case: If the evidence develop a conspiracy between Gainey Westbrook and Ward, to secure the land in dispute to the former, or to his family, against the just claims of his creditors, and if John S.p Westbrook subsequently became a party to this conspiracy, then, both the deed to Ward and his bond for titles to John S. West-brook, should be set aside to let in creditors.

The allegation in the bill is: That this property, having been levied on to satisfy a judgment against Gainey West-brook, in the year 1843, was purchased by Ward at a very inadequate price, at sheriff’s sale, with an understanding that Ward should hold the land for the benefit of Westbrook; should permit him tO' reside upon and cultivate it, and that Westbrook should, as speedily as possible, refund to Ward the purchase money, with interest; that Westbrook continued to reside on said land to- the time of his death, in 1854, and that his surviving family continued to reside on it down to the filing of the bill, in 1857; that Gainey Westbrook paid to Ward a part of the consideration money; that in the month of December, 1846, Ward executed to John S. West-brook, a son of Gainey Westbrook, then a minor, his bond for titles to said land, conditioned to execute titles to the obligee upon the payment of eighty dollars, with interest; and that this was a device more effectually to carry into effect the original covinous agreement between Ward and Gainey Westbrook — John S. Westbrook being cognizant of the understanding. The bill also alleges that, previously to all these transactions, Gainey Westbrook had become the guardian of certain minors, named Warren, the defendant in error, Eamberth, being the security on his guardianship bond; that, as such guardian, Westbrook came to the possession of a sum of money, with a portion of which he had purchased the land in dispute; that suit had been instituted on that bond against Westbrook and defendant in error, as security thereon, judgment obtained and execution issued; that the plaintiffs had caused said execution to be levied on said land after the purchase by Ward, who had interposed a claim, on the trial of which the property was. found not subject to the execution; that defendant in error had been compelled to satisfy said execution, as security; whereupon he filed this bill, praying that both the sheriff’s deed to Ward, and Ward’s bond for titles to John S. Westbrook, may be set aside, the land resold, and the proceeds applied, first, to' the payment of the balance of purchase money due Ward, and the remainder to the reimbursement of himself, for the money paid as the security of Gainey Westbrook.

The answer of Ward explicitly denies the agreement with Gainey Westbrook, and all collusion and conspiracy; admits the receipt of money from Gainey Westbrook, but avers that it was received in- payment of rent, due for the land in dispute, and avers that he had afterwards bona fide bargained and sold the land to John S. Westbrook. John S. West-brook does not deny, but ignores, the original covinous agreement between his father and Ward, as alleged — avers that he was a bona fide purchaser, without notice, and denies all collusion and conspiracy.

No witness proves, of his own knowledge, the existence of the collusive agreement between Gainey Westbrook and Ward. But the witness, Thomas J. Hood, testifies: That, subsequently to the execution of Ward’s bond to John S. Westbrook, and before the commencement of this suit, Ward told witness, that “he, Ward, held the land in dispute; that he was holding it for the benefit of Gainey Westbrook and family; that Westbrook had paid all up but a small remnant, and that, when that was paid, he, Ward, intended to make a deed to the boys, so that it should be equally divided among them.” Witness, further, testifies: That, on the same day, he communicated this conversation to John S. Westbrook, who “called upon witness to bear in mind the conversation and declarations of Ward, as there might, some day, be a lawsuit about' it, and that he, Westbrook, believed Ward to be mean enough, at some future day, to try to defraud the children out of it.” Tandy King testifies — “That, at different times, between the years 1852 and 1854, defendant, Ward, told witness that “he bought the land in dispute, at sheriff’s sale; that some thirty or thirty-five dollars of the purchase money was still owing him, and that, if he could get the money due him, that he had advanced towards the land, and get hack his bond for titles that he had given to some of the Westbrooks, he would make a. deed.” Wm. J. Russell testifies that, “about the year 1851, Gainey West-brook and defendant, Ward, came to his office (he being clerk of the Superior Court) to inquire about a bill of costs, that had accrued in and about holding Westbrook’s land (doubtless referring to the claim case mentioned in bill and answer), and that Ward told Westbrook, if he would pay the bill of costs, and twenty-five or thirty dollars attorney’s fees, the land was his, Westbrook’s, and he, Ward, would make a deed to any one for him.

This testimony of three witnesses certainly negatives the answer of Ward, and fully justifies the verdict, as to him.

But it is insisted that Ward’s sayings are not evidence against John S. Westbrook, his co-defendant. The latter is certainly bound by the declarations of Ward to- the witness, Hood. On being informed what those declarations were, he expresses no surprise, no dissent from them, but, on the contrary, by calling on the witness to bear them in mind, that he might thereafter, in a certain contingency, testify to them, Westbrook recognizes their truth, and adopts them as his own. Now, these declarations of Ward in effect establish the original covinous agreement between Ward and Gainey Westbrook — partial repayment, by the.latter to the former, of the purchase money — and Ward’s intention upon being fully repaid, to make a title to Westbrook’s sons, not to his son, John $. John S. Westbrook’s adoption of this declaration, coupled with the fear expressed by him, that Ward would, at a future day,'attempt to defraud, not himself, but “the children” of Gainey Westbrook, contradicts so much of his answer as ignores the original agreement, and the partial repayment of the purchase money by Gainey Westbrook, also that portion which declares that he is a bona tide purchaser without notice. It, in fact, proves that he became a party to this conspiracy to cover this property for the benefit of Gainey Westbrook and his family, of whom he was one. But, it is said, this is at most the testimony of but one witness, whereas, the rule of evidence requires either two witnesses, or one and corroborating circumstances, to overcome a positive denial in the answer responsive to' the bill.

Are there not corroborating circumstances?

ist. There is the continued residence of Gainey Westbrook on the land, to his death, and of his family subsequently.

2d. The relationship between himself and Gainey West-brook.

3d. His minority at the time of the execution, and delivery of the bond for titles, by Ward to himself.

4th. The fact that, after • the making of this bond, his father and Ward are found conferring together relative to the making of titles, not to John S., but to “some one for the father,” and Ward is-found demanding, not of John S., but of Gainey Westbrook, payment of costs, and of attorney’s fees, accrued in the Holding his, Westbrook’s land, as preliminary to this making of titles.

It must not be overlooked that the defendant in error predicates his prayer for relief upon fraud, which he charges upon Gainey Westbrook and the plaintiffs in error, Ward and John S. Westbrook. Mr. Justice Story, remarking upon the different degrees of strictness in proof of fraud, required by Courts of Law and Courts of Equity, uses this language: “Courts of Equity will act upon circumstances, as presumptions of fraud, where Courts of Law would not always deem them sufficient proof to justify a verdict at law.” And in this connection, he quotes with approbation the following rule, laid down by Lord Hardwicke, in Chesterfield vs. Janssen— 2 Vesey, 155: “Fraud may be presumed from the circumstances and condition of the parties contracting: and this goes farther than the rule of law, which is : that fraud must be proved, not presumed.” 1 Story’s Equity, §190.

This rule, applied jto the position of John S. Westbrook, in this case, leaves him without a shadow of claim for protection.

We are of opinion that the evidence in the cause develops the state of facts embodied in the proposition with which we commenced an examination of this case on its merits, and that the verdict of the jury, setting aside the deed and bond, and letting in the creditors, should not be disturbed. We think, moreover, that there is in it no fatal vagueness or uncertainty, as alleged in the fifth exception.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.