Alexander & Howell v. Lieth , 39 Ga. 180 ( 1869 )

Warner, J.

This case comes before the Court upon a motion for a new trial in the Court below, which was refused, and for that refusal error is assigned here. There were various questions made upon the record in this case, which presents a very complicated and confused statement of facts. Our judgment will be confined to the points in the case, upon which we grant the new trial. When the mortgage deed was offered in evidence, it was objected to, on the ground that it had no revenue stamp on it. The mortgage had been recorded, and was proved to have been stamped, and it was shown that it had been in Leith’s possession, he having got it out of the Clerk’s office. Under this statement of facts, the Court ruled out the mortgage on the ground that it was not then stamped. In our judgment, the Court should have admitted the mortgage deed in evidence to the jury, and have submitted the question of fact under the evidence, whether the deed had been stamped or not, as required by law, and to have instructed the jury, in its charge to them, upon that point in the case. If the deed had been legally stamped, as the witnesses stated, and the stamps had been taken therefrom, fraudulently or otherwise, then the deed ought not to ‘have been rejected, for the law requiring the deed to be stamped, had been complied with. When the deed of settlement between the parties was offered in evidence, it was objected to upon two grounds. First, that it never had been delivered. Second, that it was not stamped. The facts, as the same appear from the evidence in the record, are that the parties, having agreed on the terms of settlement, went to the Clerk’s office to execute the deed. The deed was written by the attorney of Alexander & Howell, signed by Leith, with a full knowledge of its contents, and was attested by the subscribing witnesses. The attorney who drew the deed, did not formally hand it to Leith, but, after it was executed, all the parties being present, he handed it to the Clerk of the Court for record, who said it must be stamped before being recorded. Howell then went out across the square, to get the stamps to put on it, and while he was gone, Leith took up the deed and carried it off. Under this state of facts, we think the Court should have let the deed go in evidence to the jury, and have left the question of the delivery of the deed to them, under its charge as to the law applicable to that point in the case. When there is any evidence as to the delivery of a deed, it is a question of fact for the jury, and not a question for the Court to decide whether there has been a delivery of the deed: 1st Greenleaf’s Ev., sec. 49 ; 2nd Greenleaf’s Ev., sec. 295.

If the deed offered in evidence, was prevented from being stamped by the act or conduct of one of the parties to it, the party so' preventing ought not to be heard in objecting thereto; but the Court may, in such a case, if satisfied that there was no intention to defraud the government of its revenue, allow the proper stamp to be placed on the instrument, at the time of the trial, by the party seeking to introduce it in evidence. Upon these several points referred to in this opinion we think the Court below erred, and that a new trial should be granted.

Let the judgment of the Court below be reversed.