Dollner, Potter & Co. v. Williams , 29 Ga. 743 ( 1860 )

— Lyon J.

By the Court.

delivering the opinion.

Was the Court right in permitting the witness, John Brooks, to testify to the statements made by Enoch- Hannum at the time of the execution of the mortgage by him to Dollner, Potter & Co. ? We think not.

At the time of the execution of this, mortgage on the-property in controversy by this issue, the mortgagor was in the possession of the same, notwithstanding he-had previously sold and made a written bill of sale, or agreement in writing, for title thereto,.-to the defendant in error, Gilbert Williams.

As between Enoch Hannum and Gilbert. Williams, this sale was good, and could have been enforced by Williams ; but without a delivery of the property .to Williams under that agreement, it was not valid as against the-mortgage lien of the plaintiffs-in error, Dollner, Potter & Co., which attached thereto immediately on the execution of the mortgage, while Hannum was in possession off the same, and before the title of defendant in error had completely vested by a reduction of the property to his possession.; unless the plaintiffs in error, Dollner, Potter & Co., had.notice at or previously to the execution of the mortgage^ of the former sale to the defendant in error, or, unless the mortgage was fraudulent ; that is, not taken by Dollner, Potter & Co. in good faith for the purposes therein specified.

To overcome this superior lien, or-better right, of the plaintiffs in error to the property, it was incumbent on the defendant in error, Williams, to affirmatively show, either that Dollner, Potter & Co., had notice at the time of, or previously to the execution of the mortgage, of the former sale to Williams, or that the mortgagees took this mortgage in bad faith or fraudulently.

The declarations of Enoch Hannum, the mortgagor, as testified to by the witness, John Brooks, at and previously to the execution of the mortgage, were offered to prove one or both of these facts; they were not admissible for either purpose, that is, to prove notice, or show fraud, for the reason, that the persons to be affected by such declarations, Dollner, Potter & Co., were not present, and assenting to the truth of such statements, which would be necessary before they would be evidence against them ; hence the Court ought to have rejected these statements. It was argued by counsel for defendant in error, that, inasmuch as Dollner, Potter & Co. were not present at the execution of the mortgage, but that Hannum had the mortgage prepared, and executed it himself in their absence, he is to be regarded as their agent. Not so. For all that we know, this mortgage was prepared and executed by Hannum, under an express agreement between himself and the mortgagees, that he would do so to secure his indebtedness to them, and in the absence of any explanation whatever of the circumstances, we would presume such to be the fact. Now, it would be strange, if one, in the literal fulfilment of his agreement with these parties in executing this mortgage, could charge it at the time, by his mere declarations, with such notice, or fraud, in the absence of those to whom the mortgage was given, as would defeat the object of the deed entirely; for this would be the effect of the admission of this sort of evidence. See what injury might result from it. Concede that Hannum was indebted to Dollner, Potter &Co. in this large amount, looking on this mortgage as ample security for their debt, they take no steps to coerce its payment, relying upon this property as their only security; and when they attempt to avail themselves of its benefits, they are met and defeated by statements of which they were ignorant, and which had no foundation in truth.

It is urged again, that they are admissible as parts of the res gestee; that is true, and it would be for that reason that they would be admissible against the deed itself, if Dollner, Potter & Co. had been present, and admitted the truth of the statement, or if it was important to enquire into Hannnm’s reasons for making this mortgage, but it is not; for however fraudulent may have been his intent in making the mortgage, yet if Dollner, Potter & Co. were no parties to such fraudulent intent, but took the mortgage in good faith, to secure a bona fide debt from Hannum to themselves, then the deed is good, and not affected by the fraud of Hannum. So the Court erred in admitting this evidence against the objection of counsel for plaintiff in error, and ought to have granted a new trial in said cause, for the reasons given above, on the first, second, third, fourth, ninth, tenth and thirteenth grounds of the motion for a new trial.

There was error in the charge of the Court as made in the fifth ground of new trial, for the reason that there was no evidence of possession of the property in defendant in error before the Court, previous to the lien of mortgage, to support such charge.

And in the charge as made in the seventh ground, because there was no proof of the delivery before the mortgage.

The charge as made in the eleventh ground of new trial was erroneous, because there was no evidence of any fraud in the mortgage, (the statements of Hannum, as testified to by Brooks, being out of the way,) and that, therefore, was a question that ought not to have been left to the jury.

The Court, had under consideration the charge of the Court below, set out in the eighth ground of new trial, as to the effect of the defendant in error, standing by in silence at the Sheriff’s sale of this property under the mortgage/, fa., and when the same was purchased by plaintiffs in error, and not forbidding the sale, giving notice of his title, or taking any steps to assert it. This question we do not now decide because counsel for defendant in error have requested us not to do so, and for the additional reason that there is other property involved in the litigation, not now before this Court, between these parties, that may be affected by a decision of this point, and as that question has been but slightly argued, we leave that an open question.

A question of practice was made and argued in this case, which grow out of this fact: The presiding Judge, in signing this bill of exceptions, made an addenda of certain other evidence, which he certifies was had on the tria!, but which was not incoporated in the brief of evidence, which had been previously approved by the Court, and filed to support the motion for new trial.

Counsel for plaintiffs in error insist that this additional ■evidence incorporated in the Judge’s certificate to bill of exception was irregular, and ought not to be considered by this Court, as a part of the record of the cause in the Court below, and we agree with the counsel. The Court below in considering a motion for new trial, must confine itself to the brief of evidence, as allowed and filed, and, in signing the certificate required by law, cannot add any additional fact, not incorporated in the bill of exceptions or brief of evidence, and when he does so, this Court can not consider it as forming any part of the record. It is proper here to add, that the additional facts certified to by the Judge, if regularly before the Court, could not possibly have affected our judgment.

Judgment reversed. ■