Trustees of Chester Church v. Blount , 70 Ga. 779 ( 1883 )

Jackson, Chief Justice.

In the view we entertain of the law, it is unnecessary to consider but one of the exceptions to the rulings of the court, and that is based on the refusal of the Court to continue, so as to enable the plaintiffs to give notice to defendant and his counsel to produce the deed.

The facts on the point aré, that the' deed had been lost, vas over thirty years old, and had been found by defendant, and was -then in possession of ¡his -attorney, Mr. Gurley, and plaintiffs had just received information of the fact of .its being found and in pos,session.of the other side.

Plaintiffs moved that .the paper be surrendered by the said counsel, and-proposed to-ask him whether-he had it. James English was introduced as a witness.on this -motion, and testified “that, about a-year ..ago .Jacob Blount (who had been .the defendant) told him he -found the Chester church deed among the old papers of.Jesse L. Collins,, now deceased, and told witness ■ to say nothing about it,, but .keep it a secret. Witness .never told any one about, it until since ¡the beginning qf this trial.. Mr. Blount said, it was an old deed -from -.Stephen..jSwain to the Qhestey-■Ohurch.” The court, denied ¡the motion-to produce-.the-deed or-interrogate the counsel ¡as to his ¡possession of ,ik Thereupon plaintiffs made a motion to -continue in order-.-to serve notice on defendant .and his counsel to produce* the paper. The executor of .Blount, who had died since* the last term, .was made a party by consent that. day. on •the call of the case. , ■

1. We hardly think that the.-facts ¡in-the case at bar come .up to the ruling of-this-court in Dover vs. Harrell, 58 Ga., 572,,and -therefore, are inclined to the opinion that counsel should have replied to the.question as to-his possession of-the deed, .and if he had it,--shpuld have been directed to produce it. In Dover vs. Harrell, the.grant which the .counsel was forced to.-, produce was a title paper: of the client which had been entrusted to the counsel. “ to, prepare his defence.” In.the case. at bar the. deed was a deed to the plaintiffs,-belonging to,the church, and which the .-defendant had got from the effects of a dead man, doubtless a trustee or officer -of the church, which the defendant had secreted with the -fraudulent intent not to divulge that it had been found, which was no muniment of title to him, nor confided to-his cpunseli to prepare his defence. It was a naked effort to deprive his adversary of a paper which.belonged to it, and to which-,it had. the exclusive title. It was a fraud to secrete it, and no less a fraud to withhold it.

Wherever a paper is in court belonging to one party and thus surreptitiously secured and secreted by the other and handed to counsel, not to prepare a legitimate defence by the use of a link in the title of the party, but to keep under color of privilege and confidence, we rather think good law, as certainly good morals, would demand its instant delivery to the party to which it belonged.

2. But let that pass. It is quite clear that the plaintiffs were in no laches in respect to notice to produce the deed. They had no reason 'to believe -or suspect that their adversary had it hid. They were informed of it on the trial. They proved it by a rvitness. If in court, in the pocket of party or counsel, it should have been disgorged, as intimated above; if not, or if notice to produce it were necessary because of extreme regard to the privilege of counsel and the confidence of his client in him, then the case should have been continued, so as to serve the executor of the man who secreted the paper or his counsel, or both, with notice to produce it.

The executor was just made a party, and could not have been served with notice before, even if the fact had been known; but the information was just received, and too late to give the notice in the time required by law. It is ■too plain for further discussion that the continuance ought do have been granted. The deed was all important. It •vas good color to support prescription, whether to trustees to cestui que trust, to former or present trustees, their •successors, or to the Chester Church.

It is bad enough for a man to lose rights by such conduct; it is worse, infinitely worse, for a church, a society for the worship of God according to conscience, to lose its place of worship thereby.

Judgment reversed.