Miller v. Saunders , 17 Ga. 92 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

This caso comes up to us, by the decision of the Court below, upon exceptions to an answer in Chancery.

[1.] The first objection is, that the Court erred in deciding that the answer was defective, because the defendant had not answered whether or not the copy of a marriage settlement exhibited, was a true copy of the original.

The defendant has been called upon, in the usual way, to answer upon this point according to his knowledge, information and belief, so as to save proof of execution to the complainant. lie has not answered according to his information and belief, but has replied evasively, saying that the copy exhibited “may be a substantial, if not a true copy;” yet, praying that the complainants “may be held to strict proof;” and again— that “it may be proved as charged, that said marriage settlement was executed in manner and form as set forth, but respondent requires strict proof and authentication.” This is not •a proper answer. The complainant is entitled to the knowledge or belief of the defendant upon this subject, and he must so answer.

[2.] The defendant admits that he has not answered as to value of the slave JElias, but denies that this is material.

It is true, that the title of the complainant to this slave is here put in question. And if he be not entitled to recover the slave, the value of the same cannot be material to him. But this question may be more appropriately decided elsewhere; and in the meantime, an answer to this point is but a slight matter. At all events, this question of title was not discussed before us; and in the absence of discussion, we deem it more expedient that the defendant should answer this comparatively unimportant question, than that we should decide this important point.

[3.] It is complained, also, that the defendant has not answered whether or not he procured the fi. fa. in favor of Joseph Ring against himself, and Durham and Saxon as securities, to be sent to the County of Dougherty, there to be levied. To this he replies that it, too, is immaterial.

The answer to this inquiry is material, in our opinion. The bill charges fraud against the defendant, in that he entered into a compromise with the complainants of a suit for, and claim to certain negro slaves, and delivered the same up to the complainants, and that he subsequently conspired with Durham and Saxon, pretending that as securities they had paid off this fi. fa. against him, when, in truth and in fact, this was not so; and prevailed on them to aid in having the same levied on these negroes, that they might be condemned as his property.

If this be true it is very material; for if Durham and Saxon have only á pretended interest in said fi. fa. and are pressing it for his benefit, this cannot be permitted. We are inclined to think, too, that even if Durham and Saxon have paid off this execution as securities, and there is other property of Miller, out -qí which they may make their money, and yet, by conspiring with him they are endeavoring to condemn this property for his debts, inasmuch as he is estopped to deny the title-of the complainants to the same, a Court of Equity will intervene and turn the execution upon other property. And in this point of view the answer is proper.

[4.] But we cannot sustain the Court below in requiring an-answer to the interrogatory, as to the length of time during which Mrs. Miller was sick, before her death. Upon examination, we find that no foundation is laid for this interrogatory in the stating part of the bill; and no answer can therefore be required of the defendant, on this point.

This rule has been too well settled by Chancery practice, and the repeated decisions of this Court, to need that we should add any thing to what we have said. On this ground the judgment is reversed.