Executors of Adams v. Jones , 39 Ga. 479 ( 1869 )

Warner, J.

This was a bill filed b3r the administrator of Jones against Adams, alleging that in July, 1849, Jones had committed an offence against the laws-of the State, which would have subjected him to punishment in the penitentiary, and. being anxious to leave the State, went to the house of Adams, and while there, Adams taking advantage of his situation, fraudulently obtained from Jones an absolute title to all of his propert)', including land and personal property, promising Jones that he would pay off his debts, and after retaining the sum of $1,050 00 advanced to Jones, to enable him to get out of the State, that he would pay over the balance to Jones or his family. Such is substantially the ease made by the complainant. The bill prayed for an account and decree against Adams. The answer of the defendant denied the fraud charged in the complainant’s bill, and claimed an absolute title to the property conveyed by Jones to Adams by the written deeds executed, and delivered by Jones to him, discharged of any trust expressed or implied. It further appeared from the record that Jones had not been heard of after leaving the State, for more than seven years, and that administration had been granted on his estate to the complainant by the Ordinary of Dooly county, in which the land and other property was located at the time of making the title deeds therefor, by Jones to Adams.

1. There were several questions raised and discussed on the argument of this case, but we shall confine our judgment to the points made, which must control it. In our judgment, the allegations in the complainant’s bill made a case of fraud on the trial of which parol evidence was admissible to prove the fraud, and thereby raise an implied trust in favor of Jones and his family. Revised Code, sections 2290, 2291, 3121, 2648.

2. The son of Jones and his alleged widow, Mrs. Jones, were competent witnesses for the complainant on the trial of the cause under the provisions of the 3798 section oí the Revised Code.

3. On the trial of an equity cause in the discretion of the Chancellor, compound interest may be charged on a final settlement with an implied trustee, who fraudulently obtains possession of the property as well as against a trustee appointed, who rightfully obtains possession of trust property as provided by the 2562 section of the Code; the former comes within the reason of the rule prescribed for the latter.

4. The seven years absence of Jones, without being heard of, was presumptive evidence of his death, and authorized the Ordinary of Dooly county to grant letters of administration on his estate; and although that presumption might have been rebutted on the trial, still the letters of administration were conclusive on the trial of this case as to that fact, in the absence of any evidence rebutting that presumption.

5. In view of the facts'of this case as contained in the record, the defendant is not protected by the statute of limitations, nor by the equitable bar of lapse of time.

6. The Court below charged the jury, that “when the answer is contradictory in itself, or contradicted by other evidence, the jury are not bound to give credit to any portion of it.” In our judgment this charge was too broad, in the latter portion of it, especially. The Court should have left it to the jury to determine what credit they would give to the answer, or to any part thereof, without any intimation from the Court; they were the exclusive judges as to the credit to be given to the answer of the defendant in view of the facts contained and stated therein. In my judgment, however, a new trial ought not to be granted in this case for this error in the charge of the Court to the jury. Although the verdict may have been somewhat too large under the evidence, still, I should not myself be disposed to disturb it under the previous rulings of this Court upon that question; yet as the majority of the Court are of the opinion the judgment of the Court below should be reversed, unless the complainant shall write off from the verdict the sum of $3,621 61, leaving the verdict to stand for $5,000 00, I concur in the judgment of the Court to that'effect. •

Let the judgment of the Court be entered reversing the judgment of the Court below upon the terms stated.