Molyneaux v. Collier , 30 Ga. 731 ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Several of the grounds taken in the bill of exceptions, were waived upon the argument, and, therefore, will not be noticed in the decision.

1. Was Jonathan Davis a competent witness? The Molyneaux execution was levied upon land and negroes as the property of George W. Collier, and claimed by Jonathan Davis. The claim to the negroes was finally withdrawn by him, but the claim to the land is still pending and undisposed of. A judgment in this case, setting aside the execution, upon the ground that it was satisfied, could be used by Jonathan Davis to defeat the execution upon the claim trial, and he would be left, of course, to hold the land in dispute, consequently he is directly interested. He would be gainer by the event of this suit. The record, in this case, could be used by him in the trial of the claim. By both of the tests, therefore, prescribed by the rules of evidence, he is excluded for incompetency by reason of his interest.

2. Does a bond of indemnity, to protect him from all liability of whatsoever kind, restore him to competency?

It must be conceded there is a conflict of authority upon this point, but the weight of authority as well as the better opinion is against the restoration to competency by this mode of procedure. Who does not know and understand that it is better to extinguish former or present liability rather than incur it and look to the bond of anybody for indemnity ? Especially in this ever changing world, who can calculate with certainty upon the future for re-imbursement? The homely old adage, that a bird in the hand, etc., applies.

Our conclusion, then, is, that it was error to allow Mr. Davis to testify in this case.

3. The witness, Jonathan Davis, had been previously examined by commission upon interrogatories. Counsel proposed to contradict his present statements by his written depositions. The Court allowed this to be done, so far as the attention of the witness had been called to his answers in tile interrogatories, but no further. In this, we think there was error: 7 Ga. Rep., 467; 14 ib., 85, 185. It was a kindness or favor to the witness to call his attention to any portion of his previous examination, and he cannot complain that his attention was turned to a part only.

4. The Court, amongst other things, charged the jury that the letters of Collier and Davis, and the statements and declarations of Collier to Hansell and others, were evidence only to prove or disprove the contract set up in the bill, and if the jury believed, after carefully looking to all the testimony, that the contract was made, then the complainants were entitled to a verdict. That if the jury believed that John Rawls made with Collier the contract set up in the bill, and that the same had been performed by the payment of $1,000 00 in cash by Collier, and $2,000 00 in Jones’ note, and that said payment was accepted in full satisfaction and discharge of Collier’s undertaking, the contract was executed and the jury must so find. And further, that if the jury should find that the contract set up was made in Albany, in 1842, and that Rawls accepted $2,000 00 in Jones’ note, secured by Collier in full of the execution, in that event the fi. fa. was satisfied, and that, notwithstanding a less sum was received, and whether the defendants in the fi. fa. were solvent or insolvent. That if Collier wrote the letter to Hansell and made the admissions which he did, under the apprehension that the contract would not protect him, the admissions are explained, provided the contract was proven.

This case has been three times already before this Court: 3 Kelly, 112; 8 T. R. Cobb’s Rep., 406; and 17 Ga. Rep., 46, and from first to last, from the beginning to the end, the contract between Collier and Rawls has been sustained upon the assumption of the insolvency of the execution debtors. It could have been enforced upon no other ground. Without this element, it was a void contract, having no consideration to support it. This is the corner-stone, the foundation, “the mudsill,” upon which the original bill, with all the amendments, rest. And now to ignore this principle is, in effect, to abandon the ease.

On no occasion before this, has the nature of the $2,000 00 payment been fully disclosed by the proof. What was the real character of that transaction? Jones bought of Davis, who held at one time the title to all of Collier’s property, negroes worth $8,000 00, upon the whole of which the lien'of Rawls’ judgment attached. The judgment is older than the sale by Collier to Davis. Rawls consents, gratuitously, to release to Jones, the purchaser, his lieu upon this property, provided $2,000 00 of the purchase-money is paid over to him. What consideration, I ask, was there for this release which was not made to Collier, but to Jones? None can be suggested. And yet this is relied on as an extinguishment of the judgment, a satisfaction of the execution; and the jury are instructed that they may so find. It - is preposterous. Rawls did not so understand it, neither did Collier. Nor would Rawls be bound by it if he did. And it is a perversion of the transaction to attempt to give it such a coloring. If it were so, why did Rawls express his fears to a witness at the time, that he had released his lien upon too much of Collier’s pi’operty ? Why did Collier urge Rawls to take the execution home with him for the purpose of coercing payment out of St. George and Bracewell, his co-defendants? What was it to him what became of the balance, provided he was discharged? Why his subsequent offers to settle thejft. fa., if it was his understanding that he had paid his part of it in full, and was to be looked to no further?

The pretense is, that he was released by this payment of $2,000 00. Why did it never occur to him to say so, instead of showing by his subsequent conduct and declarations, that the very contrary was true?

But the charge to the jury is, that if the contract was proven, Collier was absolved, and that these after admissions were to be explained upon the hypothesis, that they were made in ignorance of his ¡rights. But what is there in the testimony to justify this supposition? Who knew better than Collier did, the object and intention of that Albany transaction ? His after conduct is proof that he, at least, did not so understand that arrangement. Instead of warranting the inference that his subsequent promises were made in ignorance of his rights, his subsequent promises demonstrate that such was not the intent and meaning of that §2,000 00 payment, and that he knew it.

We forbear, ordinarily, to express any opinion upon the evidence, notwithstanding it is made a point in the bill of exceptions, when the case is sent back for a rehearing. But in this case, we feel that justice demands that we should not withhold our opinion upon the facts.

It is manifest that these execution debtors were not insolvent when the original contract was made between Rawls and Collier, which, it is conceded, never was executed. All that is claimed is the substitution of another mode of performance. The joint property of St. George & Collier, at the time, was worth §60,000 00 at law valuation, while their aggregate indebtedness amounted only to §45,000 00. After the payment of every debt which Collier owed, except the balance due upon this Molineux execution, Davis turned over to Collier five negroes, five or six hundred dollars and a settlement of land near Albany. Collier, it is alleged in the argument, is now worth from §100,000 00 to §125,000 00 or upwards. St. George discharged the whole of his liabilities, and left to his widow, his sole heir, §40,000 00, and she being the mother of the Colliers, some $10,000 00 of St. George’s estate was cast, at her death, upon her son George W. Collier. These facts are stated, and not denied, whether they appear in the record or not, which was not read, and which I have not the time to read, if I had nothing else to do, between this and the next Term of the Court. They no doubt approximate to accuracy.

If the original agreement was entered into either by the fraudulent concealment of the parties (which I disclaim imputing to them,) or an honest mistake or misapprehension as to the pecuniary condition of the defendants — which is most likely the fact, would not a Court of Equity relieve against such a contract? And it is just or equitable that an honest debt should fail of collection under these circumstances? Does it comport with honor or conscience to let it go unpaid, when there are so much means that should be applied to its discharge ? Can the complainants invoke the aid of Chancery to shield them from its payment ?

I have done my duty. I leave it to others to do theirs— as I doubt not they will — as to them may seem right and proper. I shall be content, let the result be as it may.