Executors of Everett v. Administrators of Whitfield , 27 Ga. 133 ( 1859 )

By the Court.

Benning, J.

delivering the opinion.

The first questions are on the charge of the Court.

A part of the charge of the Court, was to this effect — that, the period of the adverse possession of negroes, necessary to» bar the equitable title to them, of next of kin, is twenty years j but that, if, before the lapse of the twenty years, the title comes to persons who are minors, the time during which, they remain minors, is not counted; and that, consequently, the period in that case, is more than twenty years, viz: is the term from the accrual of the title, to its coming to the minors, plus the subsequent term during which, they remain minors; plus such a term afterwards, as shall be sufficient, when added to the first term, to make twenty years. The latter portion of this charge, was excepted to — but we think, that it was not erroneous.

Equity in general, follows the law in respect to the statute of limitations; and the law says, that the- “ statute of limitations, when it has commenced running, shall not so operate as to defeat the interest acquired by idiots, lunatics, or infants, after its commencement, but the operation of said statute shall cease until the disability or disabilities of such persons are removed, or from the time of the arrival of such infant to the age of twenty-one years.” Stat. of 1817, Pr. Dig. 578. We see nothing in this case to take the case out of the general rule.

The exception to the former part of this charge; viz, to the part stating twenty years as the period of the “ equitable bar.” That is, as the period that would have to elapse, before an administration would be presumed, was hardly insisted on. Indeed, the bill itself says, that there never was any administration, until that by Henry H. Whitfield, consequently one could not be presumed. And even if this were not so, we incline to think that the charge would still be right.

Another part of the charge, was, in substance, that if Geo. B. Whitfield was the sole heir of Mrs. E. Whitfield, his mother, he had an equitable right to take possession of the negroes of her estate; and if they were sold under fi. fas. against him, and sold with his consent, and bought by Everett, the title to them acquired by Everett, would be good against, not only Geo. B. Whitfield and his heirs, but also against an administrator of his mother — provided, there was "no fraud committed by Everett, in the sale or acquisition of the negroes.” Exception was taken to the proviso in this part of the charge ; and the ground assumed for the exception, was, that there was nothing in the evidence to authorize the Court, to insert such a proviso. The question therefore, is, whether that ground was true — whether there was any thing in the evidence, tending to show fraud, as the means by which, Everett acquired the negroes, — fraud on George B. Whitfield ?

We may assume that fraud was the means by which, Everett acquired the negroes, if the manner by which he acquired them, was some such manner as the following, namely — He and Whitfield agreed, that the negroes of Whitfield, thirty-two in number, should be sold in £ialump,” under the ft. fas. against Whitfield, although the negroes were worth much more than the amount due on the fi. fas.; that he, Everett, should bid them in, satisfy thefi.fas., and, to secure himself, receive an absolute bill of sale for the negroes, from the Sheriff, and, at a certain time afterwards, take possession of the negroes and keep such possession until his advance was repaid to him, by the labor of the negroes or otherwise. Accordingly, the thirty-two negroes were so sold in a lump.

Everett bid them in; satisfied the Ji. fas.; received an absolute bill of sale for them from the Sheriff; and, at the end of the year, took possession of them, The labor of the negroes was of sufficient value to repay Everett’s advance, by the end of a certain number of years afterwards, say ten or twelve. When this time arrived, Everett, instead of delivering back the negroes to Whitfield, set up an absolute claim to them, and commenced holding them, adversely to Whitfield. I say, that if the way by which, Everett acquired the negroes, was some such way as this, we may assume, that he acquired them by fraud. His refusal or failure to carry out the bargain, by a redelivery of the negroes, would be evidence sufficient to authorize the inference of an original fraudulent intent in him.

Now if there was any thing in the evidence, going to show, that this was the kind of way in which, Everett acquired the negroes in question — they being a part of the thirty-two— then, it is not true, as the exception assumes it to be, that there is nothing in the evidence, to warrant this charge as to fraud.

Was there, then, any thing in the evidence, going to show, that this hypothetical way was the real way by which Everett acquired the negroes ? We think that there was.

First, it is in the evidence, that the whole thirty-two negroes were sold “ in a lump,” under a fi. fa. against Whitfield; that they were bought by Everett, at $6,791, not half their value ; that Whitfield was present at the sale; that the negroes, after the sale, returned into Whitfield’s possession, and remained in his possession until the end of the year; and that at the end of the yertr, possession of them was taken by Everett, who kept it until his death in 1847, or 1848, and, that possession of them has continued, ever since his death in his executors ; and, that Whitfield died in 1839, worn out by drink — a habit which was on him at and before the sale to Everett.

Now from these facts alone, we are authorized, we are required, to presume, that there existed, between Everett and Whitfield, an arrangement of some sort by which, they and the Sheriff were acting. Had it been merely the law by which, all parties were acting, the course of events would' have been quite different. The Sheriff would not have dared to put up to sale, the thirty-two negroes “ in a lump”— and if he had done so, Whitfield would, probably,.have protested against it; nor would he have delivered the negroes back to Whitfield; nor would Everett have acquiesced in his doing so, if ho had attempted it, but he would have delivered them to Everett, the purchaser, and he in all probability would have carried them to his own home, immediately, and not have waited until the end of the year, before he did so. These facts, then, of themselves, require us to presume, that there existed some arrangement between Everett and Whitfield by which, Everett obtained the negroes. I may go further, — they require us to presume, that that arrangement was one by which, Everett was to acquire no more than a partial interest in the negroes — an interest inclusive of the right to have possession of the negroes and to receive the proceeds of their labor, in satisfaction of, or as security for, the money advanced by him, for Whitfield. And to presume the arrangement to have been such a one as this, is to presume it. to have been identical, in substance, with the arrangement assumed in hypothesis.

Everett failed to redeliver the negroes, at the time at which, the proceeds of their labor, amounted to a sufficient sum to pay off his advance; but still kept them as his own. Such conduct in him, supposing the arrangement to have been as aforesaid, was sufficient to warrant the inference, that he was actuated, from the beginning, by a fraudulent purpose.

Thus then, these facts being in the evidence, there was enough in it, as we think, to justify the charge about fraud.

Secondly: But there is more in the evidence. West, who was Everett’s overseer, the year in which the Sheriff’s sale took place, says, that Whitfield “ wanted Everett to take up the executions, and take a mortgage on his negroes,” that Whitfield urged “ Everett to take up said executions, and take control of them.” “He heard nothing about selling property.” The witness is speaking of a conversation in his presence, between Whitfield and Everett.

This goes to show, at least, what Whitfield’s wishes were, viz: that Everett should pay his debts, and take his negroes as security for reimbursement. And if these were his wishes, vim may safely say, that Everett’s purchase of the negroes in “ a lump,” at half price or less, was not an absolute purchase; for an absolute purchase would not have answered Whitfield’s wishes, and he had it in his power, to prevent a purchase on any such terms — he had it in his power, to require the Sheriff to sell the negroes to the best advantage — - and, therefore, to require him, not to sell them in “ a lump.” We are, then, at liberty to infer, that Everett acceded to Whitfield’s wishes.

Thirdly; the answer to the bill, sets up an understanding between Everett and Whitfield, of which, we may say, in general terms, that it was an understanding by which, Everett was to pay off the fi.fas. against Whitfield, and have the negroes as a security for his reimbursement. It is true, that the answer in this particular is put, on information and belief — but then the bill calls for an answer on information and belief, and the answer in this respect, merely responds to the call — for it is responsive to the allegations in the bill, as to the manner in which, Everett acquired the possession of the negroes.

We think, then, that there was in the evidence, a number of things going to show, that the mode in which Everett acquired the negroes, was the hypothetical mode aforesaid, or some similar mode; and consequently, we think, that there was matter in the evidence, to warrant the charge of the Court as to fraud.

Another part of the charge, and a consequence of the part last noticed, was, that if Everett acquired' the slaves by a fraud on Whitfield, equity would not aid him or his representatives, to hold them, against Whitfield or his representatives. This was the substance. This part was not, I believe, questioned. Certainly, it ought not to be, as we think.

Another part of the charge, was in these words. “The Court intimates no opinion as to whether fraud has or has not been proven in the case, for this is the peculiar province of the jury — looking to all the facts proven or given in evidence, by both parties. Fraud must be proven and not presumed, but it may be proven from circumstances upon the effects of which, you are the exclusive judges.” This part was excepted to, as “ submitting the question of fraud to the jury.” But as we understand the part, it merely submits the question of the weight of the “ circumstances,” to the jury. True, the word used, is “effects.” “Upon the effects of which” [circumstances] “you are to be the exclusive judges.” This is no more than saying, weigh the circumstantial evidence — for to do that is your exclusive province.

Another part of the charge, was in these words. “ The defendant’s counsel asks me to instruct you, that where a vendor or defendant in execution, after a judicial sale, remains in possession of the property sold, it is evidence of fraud. I charge you that it is a badge of fraud.” Exception was taken to this part of the charge, and the ground on which the exception was put, was, not that the proposition of the Court was not true, but that there was nothing in the case to authorize the Court to state the proposition to the jury; that there was not in the case, any matter out of which, could be made a question of defrauding creditors of Mrs. Whitfield, by what took place between Geo. B. Whitfield and Everett.

But, in strictness, this ground is not true. It was in prooij that old Mrs. Whitfield’s estate was still in debt a small sum, $50, to one Blalock, who had been her overseer. Geo. B. Whitfield was her only heir, and it was a possible thing, that he,by the arrangement with Everett, intended to defeat the collection of this debt. If he did so intend, that of itself made the arrangement fraudulent as to Blalock; and Blalock had the right to insist on it, as a ground of setting aside the arrangement. True, there may have been other and sufficient grounds also open to him for setting aside that arrangement, buta man has the right to rely on all his grounds of attack or defence. And Henry H. Whitfield, the party suing, was the administrator of Mrs. WThitfield, and as such, he both represented Blalock, her creditor, and had the legal title to the negroes. Geo. H. Whitfield not having been able to pass more than the equitable title to them, to Everett. Therefore, it was competent for Henry H. Whitfield, to assert this ground for Blalock.

So much for the question on the charge of the Court.

The motion for a new trial repeated the exceptions to the charge, and added to them some others all of which lat-. ter, may be reduced to this, that the verdict was contrary to the evidence in two particulars, one, that the evidence showed the action, barred by lapse of time — the other, that the evidence showed the verdict, much too large.

As to the first of these two particulars. If it be true, that Everett acquired the negroes from Whitfield, under an arrangement by which, he was to pay off the fi. fas. against Whitfield, and take possession of the negroes, and hold them? as security for his reimbursement, until their accumulated labor or hire, should be equal to the amount advanced by him, then, time, whether at law, or in equity, did not begin to run against Whitfield, until the accumulated hire and labor had become equal to the amount advanced by Everett, with interest, and, perhaps, not then, unless Everett then notified Whitfield, that he claimed the negroes as exclusively his own. When this time would come, would of course depend on two things, the amount of Everett’s advance, and the annual amoünt of the labor or hire of the negroes. The evidence shows, that Everett’s advance amounted to, at least $6,791, for the Sheriff's return says so, and also says, that this sum was applied, (to older fi. fas.)

The advance may have amounted to more — to a sufficient sum to pay off:all the fi. fas. against Whitfield; and it must have done so, if the arrangement between the two men was the one above supposed, and if it was carried out faithfully, by Everett. It is at least certain from the evidence, that the sum advanced by Everett, was a large sum. We may assume, therefore, I think, that it would take some- ten or twelve years, for the annual hire of the negroes to pay it off with the interest. Then we may say, that the advance was not paid off till say, 1839, or 1840. The suit in trover was commenced on the 30th of September, 1853 — that is, within less than twenty years, from the probable time at which, the hire paid off the advance, and, therefore, within twenty years from the first moment at which, time could commence running against Whitfield. The suit, then, was not barred by time, if there was such an arrangement, as the one supposed, between Everett and Whitfield. And we think, as has been already disclosed, that there was considerable evidence, going to show, that such an arrangement as that did exist between them.

Consequently, we cannot say, that we think it true, that the evidence showed the verdict, barred by lapse of time.

Is it true, that the evidence showed the verdict, much too large ?

The verdict was large, but, on a careful examination of the evidence, we think, that it was not too large. If we take the value of the living negroes sued for, exclusive of the value of the dead ones, Violet, Rose, Binah and Hannah, and add to this value so taken the hire of the negroes, inclusive of the hire of the dead ones up to their death, and from the sum deduct the expense of raising the’ young negroes, we shall have about the amount of the verdict. And ought not Everett’s executors to be satisfied with this way of coming at what should be the amount of the verdict ? We think they ought; for it is by no means clear, that they are not liable for the value of the dead negroes.

It is true that in this mode of calculation, they get no credit for the amount advanced by Everett, for Whitfield. But then on the other hand, the suit is but for a part, and much the smaller part, of the negroes received by Everett; and, in the absence of proof from his side, it is fair to presume, that this larger part of the negroes, which he or his representatives still retain, is sufficient to balance that amount.

Upon the whole then, we cannot say, that any of the exceptions appear to us, to be sufficient.

Judgment affirmed.