Howard v. Snelling , 32 Ga. 195 ( 1861 )

JBy the Court.

Jenkins, J.,

delivering the opinion.

On the trial of this case in the Court below, the jury found for the defendant, and the plaintiffs moved for a new trial, on several grounds. The refusal of the Court to grant a new trial is the error complained of, and we proceed to examine the grounds overruled.

1. A bill of sale from Samuel Tompkins (under •whom plaintiffs claim) to the defendant, Snelling, for one of the slaves in dispute, was offered in evidence by the defendant, upon proof that the maker and subscribing witness were both dead, and that the signature of the subscribing witness is the genuine signature of John Thornton, the witness; plaintiff objected, that the proof of execution was insufficient. The Court overruled the objection, and this is the first ground taken.

The current of authorities sustains the decision. There are eases to the effect, that the proof of the handwriting and signature of the maker, where the witness is dead, will be sufficient. We know of none that it is indispensable; and there are many that the regular course is to prove the signature of the subscribing witness. It is so laid down in Harrison’s Digest, vol, 1: 2869, citing Page vs. Mann; M. & M., 79, Tenterden; J. P. Kay vs. Brockman, 3 Car. & P., 555 ; M. & M., 286, Best.

So, if one of the subscribing witnesses be dead, and the other beyond the process of the Court, it is sufficient to prove the handwriting of the witness that is dead. Adams vs. Kerr, 1 B. & P., 360.

It is the more proper in this case, inasmuch as the maker signed by his mark.

This ground of the motion was properly overruled.

2. The second ground alleges error in the charge of the Court, to this effect: “ That the recital in the bill of sale, (above mentioned,) as to the receipt of the purchase money for the negro girl, Harriet, was prima facie evidence against the plaintiffs of the fact of such payment of the purchase money by Snelling,” (the defendant,) and in the refusal of the Court to charge the contrary on request.

The rule is, that such recitals in deeds and other instruments, are evidence against the maker, and against persons claiming under him by subsequent conveyances.

In the case of Horn vs. Ross and Keith, 20th Ga. R., 210, 221, (being a claim case, and one Harvard, defendant in execution,) a recital in a deed made by Harvard was relied upon by claimant, against plaintiff in execution, Judge Benning delivering the opinion, first establishes the fact, that the plaintiffs in execution claim under Harvard, and then adds: “ The only remaining question is, did they claim under him by a right that arose subsequently to the date of the deed, and consequently, to the date of the recital ? The answer is, that they did.” He then concludes, that, by the general principles governing such cases, they are bound by the recital.

The general principle he thus affirms—page 220: “ Declarations made by a person, if adverse to his interest when made, are evidence against him, and against all persons claiming under him by a right arising subsequent to the declarations,” citing 1 Taunt., 161; 2 Phil. Ev., Cow & Hills’ Notes, note 481.

Applying this rule to the ease at bar, and taking the converse of the proposition to be true, viz: That declarations of a party do not bind those claiming under him by a right arising prior to the declarations, we hold that the Court erred, both in the charge given, and in the refusal to charge, as requested ; the fact being, that plaintiffs’ claim, under Tompkins, by a deed made thirty years before the date of the recital in the bill of sale.

Any other doctrine would be exceedingly dangerous, for it would put it in the power of the vendor always to defeat a prior voluntary conveyance, however fair and valid, by a simple recital in a subsequent deed.

3. The third ground imputes error to the Court, in that he charged the jury: “ That the subsequent sale of the negro by Tompkins to Snelling, was evidence to be considered by them, of the intent of Tompkins, at the time of the execution of the voluntary deed, to perpetrate a fraud on subsequent purchasers or creditors; that it is a circumstance to be considered by them, in determining whether the voluntary deed was made with intent to defraud.”

It will be seen, when, in considering the next ground, we review the rulings of this Court on this whole subject, that a conveyance of property to a purchaser, for valuable consideration, without notice of a prior voluntary conveyance of the same property, is, itself, presumptive evidence of fraud in the prior voluntary conveyance. This being so, it was not error in the Court to instruct the jury, that they might consider the subsequent conveyance, for value, without notice, “as a eirGivmstconoe” in determining the question of fraud, or no fraud, in the prior voluntary conveyance. It was equivalent to saying, such subsequent conveyance is not conclusive evidence of fraud, but it must be considered by you as evidence.

4. Error is assigned against the verdict, as being contrary to the charge of the Court, as set forth in the 4th ground. (For which, see statement.)

If this charge was correct, and if the facts warranted its application to the case, the, verdict was erroneous. If the charge were erroneous, the verdict should not be disturbed. We will subject this charge to the test of previous rulings of this Court upon this question of law, and it would seem to be appropriate, in this connection, to review those rulings, as an impression seems to prevail (erroneously, we think,) that they are inconsistent, some with others.

The question came first before the Court, in the case of Fleming vs. Townsend, 6th Ga. R., 103. The Court, at that early day in its existence, seem to have been impressed with the importance of prescribing a rule, which would govern all cases wherein a contest should arise between volunteers and subsequent purchasers for value. Our impression is, that the profession, upon careful consideration of that case, will find in it a rule for almost any, whatever be its facts, involving this question, that may demand their consideration. Judge Uisbet, Avho delivered the opinion, carefully reviews the whole doctrine, considered with reference to the common law, and as affected by the statutes, 13th and 27th Elizabeth.

The learned Judge states this to be a general rule of the common law, “ That a voluntary conveyance is void, against subsequent bona fide purchasers, fora valuable consideration, without notice.” 107. i

He considers the statutes 18th and 27th Elizabeth, and although, by the terms of the 13th, purchasers are excluded, and, by the terms of the 27th, personalty is excluded, he considers that the spirit of each act embraces both purchasers and personal property. The two being in pari materia, he thinks, in all such cases, they should be construed together as one act of legislation, and concludes this view with these words, “ It is clearly the policy of our State to extend the provisions of the statute of Elizabeth (27th) to personal property.” 107.

On the subject of notice, he shows that “ very many decisions in England, of the highest authority, go the extent that a voluntary conveyance is void against a subsequent purchaser for value, even with notice,” and quotes this commenting upon them by Chief Justice Marshall, in Cathcart et al. vs. Robinson, 5 Peters, 279, “These decisions do not maintain that a transaction, valid at the time, is rendered invalid by the. subsequent act of the party. They do not maintain that the character of the transaction is changed, but that testimony, afterwards furnished, may prove its real character. The subsequent sale of the property is carried back to the deed of settlement, and considered as proving that deed to have been executed with a fraudulent intent, to deceive a subsequent purchaser.” .Judge Nisbetadds, “The fraud was made to depend alone upon the evidence furnished by the subsequent sale. That was held conclusive, even with notice, and could not be rebutted in some of the cases,”—sundry cases as cited. Other cases are then cited, to show a relaxation of this rule, in England, in favor of volunteers against purchasers, with notice.

Stating, upon the authority of Chief Justice Marshall, that “the construction of the statute of Elizabeth was very unsettled in England at the era of the American Revolution,” he thus concludes: “ The decisions, however,unquestionably went so far as to make a subsequent sale to a purchaser, without notice, presumptive evidence of fraud, against one who'had made a settlement, not on a valuable consideration, which threw on a person claiming under such a settlement the burthen of proving that it was bona fide. This is the rule of the Supreme Court of the United States, and of most of the Courts in this country. It seems consonant with reason and equity, and we adopt it as the rule of this Court.” 111.

Here, then, we have involved in this ruling three propositions. 1st. A voluntary conveyance is prima facie void against a subsequent purchaser for value, without notice. 2d. This conclusion of law is reached by treating the subsequent conveyance for value, without notice to the purchaser, as presumptive evidence of fraud in the voluntary conveyance. 3d. That this prima facie case may be rebutted by evidence of the- bona fides, of the voluntary conveyance. Thus are we furnished with a general rule, the reason upon which it rests, and a qualification of it. Add to this the words next succeeding the above quotation, viz: “ Our judgment is, that a subsequent purchaser is not protected, unless he buys without notice” and what immediately follows, declaring what shall be notice, (not necessary to our present purpose), and it will be found that the entire ground is covered.

If the evidence, in any case, disclose a voluntary conveyance simply, without the attendant circumstances, or motives, or inducements to its consideration, and subsequent conveyance for value, without notice to the purchaser of the prior voluntary conveyance, and there stop, the general rule controls, and the subsequent purchase is preferred. If, on the other' hand, there be in the case aliunde evidence that the voluntary conveyance was bona fide—free from all fraud, the qualification comes' to the relief of the volunteer, and gives him the preference. If, again, the evidence present a case of a voluntary conveyance, and subsequent conveyance for value, with notice to the purchaser of the prior voluntary conveyance, and nothing more, the presumptive evidence of fraud is wanting—the subsequent purchaser has no prima facie case, there is nothing to be rebutted, and the volunteer is preferred.

I propose, now, to refer to subsequent cases in which this question has come, in some one of its phases, before this Court, for the purpose of showing that the rule in Fleming and Townsend has not been infracted. The next case was that of Fowler vs. Waldrip, 10 Ga. R., 350. That was a case of a voluntary conveyance, and a subsequent conveyance for value. There was an attempt on the part of the pur_ chaser for value, to show affirmatively and by aliunde evidence, fraud in obtaining the voluntary conveyance. Opposed to this, the volunteer introduced a witness to prove that the voluntary conveyance was bona ficle. Furthermore, there was evidence of notice to the subsequent purchaser. This Court held the notice sufficient, and on that ground, placed their judgment in favor of the volunteer; thus bringiDg the case within the third class above enumerated, under the ruling in Fleming and Townsend, and in entire consistency with that case.

.The next case in-order of time is that of Harper vs. Scott, 12th Ga. R., 125. The groat contest in this case, was upon the question whether or not there was a valuable consideration for the first conveyance. There was no pretence that the subsequent purchaser for value had notice of the prior conveyance. There was no evidence to rebut the presumptive evidence of fraud. This Court, after careful and elaborate examination of the evidence, arrived at the conclusion that the first conveyance was certainly"voluntary, and then held that, according to the spirit of 27th Elizabeth, and according to the common law rule, that conveyance was void against the subsequent purchaser for value, without notice, thus bringing it under the first class of cases I have deduced from Fleming and Townsend.

Next came the case of Clayton vs. Brown, 17th Ga. R., 217. There had been a conveyance by one Reeves to Clayton, of certain property in trust for his wife and children. Subsequently, a creditor of Reeves obtained judgment against him, levied on a portion of the property so settled, which was sold by the sheriff, and bought by Brown, the defendant. The Court below, in charging the jury, treated it as a case between a volunteer and a subsequent purchaser for value, without notice. This Court held that the case had not been properly presented—that the purchaser, at sheriff’s sale, could be in no better position than the creditor under whose judgment lie purchased—that it was a case between volunteers and creditors, in which the question of notice was not involved—and for this error in the presentation of the case, as well as for misdirection regarding continued possession in the settler, sent the case back for a re-hearing. This case was wholly aside from that of Fleming and Townsend; therefore,

In Brown and others vs. Burke, 22d Ga. R., 574, the ruling was, that “ a subsequent sale, without notice, by a person who had made a settlement, not on valuable consideration, is presumptive evidence of fraud, which throws on those claiming under the settlement, the burthen of proving that it was made bona fide.” This is strictly in accordance with the ruling in Fleming and Townsend, inasmuch as it recognizes both the ground rule and the qualification of it, as there declared.

I refer, lastly, to the unpublished case of Black et al. vs. Thornton, decided at Athens, November Term, 1860, which, however, in manuscript, was referred to in the argument of this case, and seemed to be regarded as. in conflict with Fleming and Townsend. In that case, the Court below had given, in charge to the jury, the general rule adopted in Fleming and Townsend, viz: that a subsequent purchaser for value, without notice, of a prior voluntary conveyance, would be preferred to a volunteer, and we sustained him in it. There was no attempt to rebut the presumptive evidence of fraud arising from the subsequent sale. So far from any such redeeming evidence in favor of the voluntary conveyance, there were, in my view of the case, strong circumstantial proofs of fraud in the voluntary conveyance, wholly irrespective of the want of notice. We also sustained the Court in refusing certain charges asked, on the ground, that, if'given, they would probably have conveyed to the minds of the jurors the impression, that the purchaser, without notice, must go farther, and give aliunde proof of fraud in the making of the voluntary conveyance. That case came under the general rule in Fleming and Townsend. There was nothing to call for the application -of the qualification, and, therefore, it was not given. There is no conflict whatever in the two cases.

The profession will readily acquiesce in the suggestion, that the opinion and judgment of the Court should always be considered in connection with the facts. To many general rules of law there are exceptions or qualifications, as well settled as the rule itself. When the facts of the case call only for the general rule, it is unnecessary to do more than apply it. If the facts demand the exception or qualification, the necessity to declare and apply that arises. If it were necessary, in each case, to refer to all the law appertaining to the particular branch of the science under consideration, each judicial opinion would swell to the dimensions of a treatise.

Applying the law, thus understood, to the charge in question, and considering it in connection with what immediately preceded, (as set forth in the 3d ground,) it will appear that the charge was correct. It contains an instruction to the jury, to consider the presumptive evidence of fraud, arising from the act of making a subsequent conveyance, for value, without notice; and this is qualified by the instruction, that’ the prior voluntary conveyance is not necessarily thereby invalidated—that it must appear that the voluntary conveyance was made with intent to defraud. This was rendered proper by aliunde evidence before the jury, tending to establish the bonafides of the first conveyance.

• The application of this charge to the evidence, to ascertain whether or not the jury found contrary to the charge of the Court, fairly involves the consideration of the only remaining question raised in the sixth and seventh grounds, viz: whether or not the jury found contrary to the evidence, or to the weight of it. Was there before the jury enough to rebut the presumptive evidence of fraud ? There was, first, the very significant fact that thirty years intervened between the two conveyances. This was certainly a very long incubation of a fraudulent intent. This is not an immaterial consideration. I would say that, as a general rule, the strength of the presumption of fraud, arising from the second conveyance for value, without notice, and by relation, affecting the first, is, inversely, as the length of time intervening the two. As the latter increases, the former decreases. Where the intervening time is very short, an impartial mind would readily take the impression, that the first conveyance was but a fraudulent preparation for, or preliminary to, the second. But where, as in the present case, á very great length of time intervened, such a mind would reluctantly yield obedience to an arbitrary rule of law, requiring it to connect the two acts, and to characterize the first by the last. Such a mind would take a decided impression from that circumstance alone, and would readily avail itself of the privilege found in the relaxation of the rule, to scrutinize the facts closely in search of evidence rebutting the presumption. Taking this direction, we find, in the evidence, weighty circumstances surrounding the' donor at the time of the execution of the voluntaiy conveyance, strongly inciting him, by every consideration of simple justice and of natural affection, to execute it. Pie had married, and soon found himself grossly imposed upon and outraged. His wife brought to his bridal bed the embryo fruit of illicit intercourse. This would have entitle^, him to a divorce a vinculo; but, waiving that right, he simply returned to those who gave her, their prostituted gift. Subsequently, and during her life, he very improperly and unwisely took to his bed and his board another woman, passing, wdth her, through the mockery of a formal marriage. She, though not legally his wife, seems, by the faithful performance of a wife’s duties, to have merited and to have received from him a husband’s devotion. She bore him children, all unaware that the taint of illegitimacy fastened upon them at their births and clung to them through their lives. Under these circumstances, the voluntary conveyance before the jury, making provision for these children and for their mother, was executed. Such is the testimony of one of the subscribing witnesses. The deed itself teems with references to the illegitimacy of his second marriage, and to the illegitimacy of the fruit of that connection. What mind can resist the impression, that the ruling idea in his mind in the making of this settlement was, that he owed it as a duty to those thus dear to, and dependent upon, him, yet incapable, by his own false step, of inheriting from him, to make some provisions for them, by voluntary settlement? It is difficult to conceive of a stronger case of rebutting evidence, than is presented by the great length of time intervening the two conveyances, and the other circumstances alluded to. Courts and juries should never lose sight of the fact, that in such cases there may be such a thing as a fraud practised, or attempted, by the donor upon the volunteer; and where such a case is presented, they should be no less astute to defeat it, than in other cases to defeat fraud against a purchaser for Value. Our conclusion is, that this verdict is contrary to the charge of the Court, and strongly and decidedly against the weight of evidence; and for this reason, as well as for error in the charge relative to the effect of the recital of payment in the bill of sale, reverse the judgment of the Court below overruling the motion for a new trial, and adjudge that the verdict be set aside and a new trial granted.

Judgment reversed.