Warner v. Robertson, 13 Ga. 370

Warner v. Robertson

13 Ga. 370 | Ga. | 1853

By the Court.

Warner, J.

delivering the opinion.

The only question made by this record, for our consideration and judgment is, whether there was any legal evidence before the Court and Jury, at the trial of the cause, to authorize a verdict for the complainant.

On the 15th day of April, 1842, Warner, the complainant, *385executed the bill of sale contained in the record, to Robertson, the defendant, for the seven negro slaves specified therein. On the 16th day of April, 1842, the next day after the bill of sale was executed, Robertson executed and delivered to Warner the following instrument in writing: “The said bargain between Samuel Warner and John Robertson is to certify, that whenever the said Warner pays all the demands that the said John Robertson holds against the said Warner, the property is to be refunded back to the said Warner.” At the trial, this written evidence was admitted to be read to the Jury without objection.

The argument for the defendant' below in support of the judgment of the Court granting a new trial is, that there was no evidence to support the verdict, except such as is expressly prohibited by the Act of 1837 ; that the writing executed on the 16th day of April, 1842, by Robertson, did not relate to, and had no connexion with, the bill- of sale of the negroes, executed on the 15th of April, but was evidence of, and had reference to a new, distinct and independent contract between the parties.

The Act of 1837 declares, “ that oral evidence shall not be received in any Court in this State, to show that a deed or bill of sale, absolute upon its face, was intended as a mortgage, or security, for the payment of money, or any other thing, unless there is a charge of fraud in obtaining the same, in which case oral evidence, going to show the fraud only, may be received, any law, usage, custom or practice to the contrary notwithstanding.” Cobb’s Digest, 274.

Did the written instrument executed and delivered by Robertson to Warner, on the 16th of April, have reference to the bargain made between the parties the day before, of which the bill of sale is the evidence, and was it the understanding and intention of the parties thereto, that it should have such reference, and constitute a part thereof ?

The written evidence of the bargain, as manifested by the bill of sale, executed on the 15fch of April, did not certify, up*386on its face, that whenever Warner paid all demands that Robertson held against him, the property was to be refunded back to Warner; but on the 16th of April, Robertson declares, in writing, that the said bargain shall certify that fact. What bargain shall so certify and declare ?

This written evidence, most unquestionably, had reference to a bargain which had previously been made between the parties, and to a bargain which had been made in relation to property. What bargain made between the parties, and to what property did the written evidence have reference to, was the question for the Jury to decide, from the evidence before them; and two special Juries have decided, by their verdict, that it had reference to, and was a certificate, or declaration in writing, on the part of Robertson, that the bargain, bill of sale, or contract, made on the 15th April, between the parties was, that whenever Warner paid all demands that Robertson held against him, the property was tobe refunded back to said Warner — in other words, the writing executed on the jl6th April, was intended to certify and declare, that the bill of sale executed on the 15th April, was merely a security for the payment of all demands which Robertson held against Warner.

The Act of 1837, excludes oral evidence. The instrument in writing, executed on the 16th April, admitted in evidence to the Jury without objection, was not oral evidence: it was legal and competent evidence for the consideration of the Jury. The only doubt which could have existed, was as to its application to the bargain or contract, made on the 15th of April. In order to remove that doubt, and to show its application to that bargain, the declarations and conduct of the parties in relation to the property, were admissible. For if that instrument in writing, executed on the 16th of April, had reference to the bargain, or contract, made between the parties on the 15th of the same month, and the property embraced therein, then the question is a clear one against the defendant in error; and now to sot up an absolute title to the property, would be a gross fraud upon the rights of the plaintiff. The testimony of Knight, *387Kelly, Dugas and Wimberly, is pretty strong evidence to show that the defendant understood the written certificate or declaration, executed by him on the 16th April, applied to the bargain or contract made between himself and the plaintiff the day before.' He did not treat the property as his own, absolutely and unconditionally. Why did he not so treat it? Because he knew that he had executed an instrument in writing, the day after, the bill of sale was executed, certifying and declaring, that “ the said bargain between himself and Warner was, that whenever Warner paid all demands that he held against him, the property was to be refunded bach to the said Warner.”

In our judgment, there was legal and competent evidence before the Jury, to maintain and support their verdict, over which the Court had no legitimate control.

It has, however, been insisted that this Court will not control the discretion of the Court below, in granting a new trial. The new trial was granted in this case,' on the ground that there was no legal and competent evidence to support the verdict of the Jury. Upon an inspection of the record, we are of the opinion, that there is legal and competent evidence to sustain and support it; that it is not merely a question of discretion, but a question of law — for if there is any evidence which is properly the subject matter of consideration by the Jury, it is against the law for the Court to set aside their verdict.

[2.]. Perhaps there is no one feature more indelibly stamped upon bur system of jurisprudence in this State, than that which submits all questions of fact exclusively to the consideration of the Jury. The Court decides the law — the Jury find the -facts, upon the evidence submitted to them by the Court.

Let the judgment of the Court below, granting a new trial in this case, be reversed.