Evans v. Lipscomb , 31 Ga. 71 ( 1860 )

By the Court.

Jenkins, J.,

delivering the opinion.

The record in this case is very voluminous, and it presents exceptions to different rulings of the Court by each party.

We will consider, first, the exceptions taken by the defendant in the Court below, and as each party is both plaintiff and defendant in error, we shall designate them by their positions, respectively, in the Court below.

1. The defendant excepts, first, on the ground that the Court “erred in not dismissing the action.” We have searched the transcript, in vain, for evidence that any distinct motion was made to dismiss the cause before it had been submitted to the jury. The 10th and nth grounds of the defendant’s motion for a new trial, impute error to the Court, in having charged the jury, that in this form of action, and under the proofs, a recovery could be had for the value of the negroes in dispute, and their hire. This is the only trace we find in the record of exceptions made to the form, of the action in the Court below. The plaintiff was evidently proceeding under the second section of the Act of January 15th, 1852, entitled: “An Act to regulate the mode of suing the bonds of Executors, Administrators and Guardians.”

In this action, it has been attempted to inquire into advancements made, during her life, by the intestate; and the principal object was to> try the title to' certain slaves, of which plaintiff maintains that the intestate died seized and possessed, and which are in the hands of the defendant, as administratrix, but which the defendant insists are her own property, by gift from the intestate. We strongly incline to the opinion that the remedy given by the second section of the Act of 1852, is applicable, and was intended by the Legislature to be applied, only, to matters of account between the representatives of deceased persons and their legatees or distributees — or between guardians and their wards. Where the claim of the plaintiff is based upon the returns of the defendant to the Ordinary, impeached only by such surcharging of particular items, improperly introduced, or omitted, or overcharged, or undercharged, as may be conveniently set forth in the assignment of breaches of the bond, the remedy may be sufficiently appropriate; but when attempted to be used to try title to slaves, between the deceased and his representative, or to adjust unequal advancements, made by the deceased to his children or grandchildren, we think it due to the General Assembly to- suppose that the attempt goes beyond their contemplation.

Presented as the exception is, in this case, and weakened b(y a consent equivocal in 'its terms, and differently understood by the opposing counsel, but clearly embracing the speedy decision of the contested damn to the slaves, we will not, on this ground, reverse the judgment.

The next exception, taken by the defendant, is, that the Court erred in overruling his motion for a new trial upon all of the grounds presented in the motion; and this brings them under review.

In his argument before this Court, defendant’s counsel abandoned the first, second, third, fifth, sixth, eighth and ninth grounds. The tenth and eleventh (referring to the charge of the Court touching the sufficiency of the remedy), have been disposed of in considering- the first exception. The fourth ground is error of the Court in admitting- the declarations of Mildred Bowling- (the defendant’s intestate), of her intention not to make a will, and in regard .to what her father did with his property, and all her declarations as to. the disposition of her property at her death.

Throughout the trial of this case, the door for the admission of evidence was certainly very widely opened for the benefit of both parties. The tendency in the progress of jurisprudence has been to relax greatly the stringent rules of evidence to be found in the books, and this Court has already gone far to sanction this relaxation. Touching the precise question now under review, two- of the Court are of opinion that the evidence was properly admitted, whilst the third, holding that it, with much of like character, might well have been excluded, deems it too immaterial — of too light a character — to- warrant the supposition that it influenced the finding of the jury, or to> justify a reversal of the judgment.

The seventh ground assigns as error, the exclusion of the declarations of the intestate, and other evidence, going to shory the amount of money advanced to the father of plaintiffs, and the injury sustained by Nathan Lipecomb, in becoming the security of John W. D. Bowling, the father of the plaintiffs-.

There is nothing, whatever, in the pleadings, or in the consent, referring to advancements. If the defendant desired to have advancements adjusted, she should have either demurred to the action or pleaded them, specially.

Who Nathan Lipscomb was, or how>his injuries, resulting from his securityship' for the deceased father of plaintiffs, is connected with the- distribution of Mildred Bowling’s estate, the record does not disclose, and this ruling of the Court seems to be quite right.

2. The thirteenth ground is, that the Court erred in charging the jury, as requested by plaintiff’s counsel, “That, when a witness testifies to facts, incoherently or inconsistently, that circumstance goes to the credibility of the witness; and if the manner is very incoherent, or inconsistent, the testimony should be considered with great caution.” We regard this charge as equally consonant with reason and with law.

All of the other errors, alleged by defendant’s counsel against the charge of the Court, and against the verdict of the jury, except the eighteenth and last (in which the Court sustained them), may be resolved into’ this question—

Is the verdict of the jury sustained by the law and the evidence ?

It must be borne in mind that the great question in the case is, as to the liability of the defendant, Lipscomb, in her character of administratrix, for the value and the hire of certain slaves. Plaintiffs allege title in the intestate at the time of her death. Defendant sets up title in herself, by gift from the intestate.

Plaintiffs prove possession of, and property in, certain slaves, by the intestate, in and near the close of the year 1854, she having died early in the year 1855. About this there is no dispute. Plaintiffs, also-, proved the value’ and the hire of the slaves, and then closed their case.

Defendant put in evidence declarations of intestate, of her intention to give, and, of her having given, the slaves in dispute to the defendant, and also' evidence as to delivery.

The declarations of intention to give, we put out of the question, as amounting to nothing.

The declarations that she had so given the slaves, were proven -by four or more witnesses; but they were of the most general character, indicating neither time, nor place, nor manner, . nor witnesses to the fact. All the circumstances clearly indicate that the gift, spoken of by intestate as having been made, was unaccompanied at the time of making it, by any delivery, actual or symbolical.

In Anderson & Wife vs. Baker, 1st Geo. Reports, 595, this Court held that, “to constitute a valid parol gift of a chattel, there must be an immediate delivery of the same by the donor to the donee.” And again, “The bare declaration of the donor, that she had given certain negroes to' the donee, is not sufficient to pass the title to the donee without evidence of some act, from, which the jury may presume a delivery of the property where the donor remains in possession of the property, exercising dominion over it until her death.”

In Carter & Wife vs. Buchannon (which was trover for a slave), 3d Geo. Reports, 513, this Court held, that “Declarations of the donor, made on the evening of the same day on which the alleged gift was made, but after it was made, to show that there was a gift, and the manner of it, are not admissible as paxds of the res gestee,” and justified the rejection of such evidence in proof of a gift.

How much less, then, are declarations of the donor admissible to prove the gift, which were made, we know not how long, after simply stating the gift, but not the manner and form of it ?

The Court say, on page 517: “It is well settled that the acts of the party, or the facts, or circumstances, or declarations, which are sought to be admitted in evidence, are not admissible, unless they grow out of the principal transaction, illustrate its character, and are contemporary with it.”

In both these cases, numerous authorities were cited and well considered. When we consider the great value, in Georgia, of negro property, and the facility of proving parol gifts by general declarations of the donor (often made playfully or inconsiderately), it is a subject of congratulation that this Court, at an early day in its history, adopted stringent rules touching the proof of parol gifts. But these rules will, avail nothing, unless rigidly enforced.

3. We hold, then, the general rule to be, that there-must be, to constitute a valid parol gift of a chattel, an actual» delivery of the chattel, at the time of the gift, accompanied, by words characterizing the act as a gift — and further, that the act and the words spoken must be such as to> signify clearly the transfer of dominion over the chattel from the-donor to the donee. Such, we say, is the. general rule;: whether or not there may be declarations and circumstances, not precisely contemporaneous, but equivalent, as to intention and transfer of dominion, we leave to be determined as-eases may arise. In this case we hold, that the mere declarations of the alleged donor, that she had given, etc., are insufficient to establish the gift.

4. But it is insisted that there was an actual delivery of the slaves in dispute, posterior to some of the proven declarations of the donor, that she had given, etc., and prior to» other declarations of the same party of like import. These prior and posterior declarations, it is insisted, connected with the intermediate delivery, bring the case within the rulings of the Court — make a case equivalent to that involved in the general rule.

To that proposition we assent, with this qualification: that, as to the act of delivery relied upon was characterized by no contemporaneous words, the subsequent possession by the donee must be such as to show an abandonment of dominion by the donor, and its acquisition by the donee. The proof of delivery was briefly this: that the alleged donor directed her overseer, so soon as the crop of 1854 was gathered, to-notify her of it, for “she wanted to- deliver the negroes to* Mrs. Lipscomb;” that, having gathered the crop, he after-wards notified her of it, and a boy, hired by Mrs. Bowling, came with Mrs. Lipscomb’s cart and took the negroes away. He afterwards saw them on Mrs. Lipscomb’s plantation. Other witnesses testify to having seen them there. Now, as the validity of this gift confessedly hangs upon the question of delivery, the character of the possession, acquired through it by the defendant, should be closely scrutinized.

Plaintiffs offered rebutting evidence to this point.

There were four witnesses, viz.: Brittain, Harris, Edwards and Forbus, who testified to conversations with Mrs. Bowling and Mrs. L'ipscomb, both present and participating, in which they spoke of an arrangement, made between them, to farm together, on Mrs. IPs plantation, in the year 1855. Two witnesses, viz.: Mary Bowling and Martha Samples, testify to similar declarations, made to them by Mrs. E. alone. These conversations occurred about the last of 1854, or first of 1855. Some of these witnesses give the details of the arrangement as stated by the two, or by the defendant, and amongst them were these: that they should furnish, each, about an equal number of hands, about an equal amount of provisions, should contribute equally to bear the expenses, and equally divide the profits. The witnesses, Ridley, Pharr, Bowling and Samples, also testify to sayings of the defendant, shortly before and shortly after the death of the intestate, relative to these slaves, not at all reconciliable with the idea of title to them in herself.

This testimony was all before the jury; their verdict shows that they considered the transaction relied upon as a delivery, not consistent with an abandonment of dominion by the intestate, and an acquisition of it by the defendant. We think the rebutting evidence fully justifies their conclusion, and will not, therefore, set aside their verdict as against the law and the evidence of the case. This disposes of the defendant’s exceptions.

The plaintiffs except to- the judgment of the Court, first, because the Court granted a new trial, unless a certain, sum be remitted from the damages, which were deemed excessive. After a careful review of the evidence, we agree with the Judge below, and for the reasons stated by him, that the damages were excessive to the extent of the sum required by him to be remitted.

Plaintiffs except, secondly, that the Court erred in permitting the defendant to show that some of the slaves had depreciated .in value since the conversion, after the plaintiffs had proven an appreciation in value of others', since the same event.

We sustain this ruling, for the reason that our practice allows in trover an alternative verdict, as regards the value of the slaves; that is to say, a verdict assessing, separately, in the damages the value of the slaves, to be avoided by delivering the slaves to the plaintiff, within so many days; and this form is almost invariably adopted. But defendant has not the privilege of retaining some, and delivering others, of the slaves; he must deliver all of the slaves, or pay all of the money. In this view, as well as in a general view of the subject, the jury should have evidence of the value of all, at any time, when the value of some was proven.

Finding no error in the numerous rulings of the Court, we affirm the judgment.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the 'Court below be affirmed, and that the plaintiffs be allowed, until the last day of the next term of the Superior Court of Troup county, to remit from the amount of damages, found by .the verdict, the sum stated as excess by the Court in the judgment upon the motion for a new trial.