Sims v. Ferrill , 45 Ga. 585 ( 1872 )

Montgomery, Judge.

In this case, the evidence is very conflicting, but that was a matter for the consideration of the jury. According to the case as made by the complainant, the defendant in error, the material facts are as follows: Benjamin W. Fer-rill died in December, 1861, leaving a widow, Ann E. Ferrill, (the intestate of defendant in error,) to whom he left his residence and about eighty acres of land. By his will, he left F. O. A. Allford his executor. Allford qualified, and subsequently sold the house and land left to the widow, at executor’s sale, to pay debts, as stated in the bill. The widow purchased the property through her brother-in-law, the plaintiff in error, and received titles from the executor. Shortly after, Thomas J. Threlkeld, a brother-in-law of R. H. Sims, the plaintiff in error, told her that a gentleman would give her $6,000 for the place. She informed him she did not desire to sell. After this, Sims advised her to sell, telling her that a Mr. Prothro held a judgment against her husband, which was a lien on the property, and that, at the close of the war, it would be in his power to sell her out. Reposing trust and confidence in Sims, as her brother-in-law, she acceded to his advice, and asked him to assist her in the sale. He had hand-bills, offering the property for sale, struck off for her, and told her to ask $10,000 for it. This was in 1863, and the price named was in Confederate money. Several persons looked at it to buy, among others, I. G. Drake, (a witness for Sims,) who said Mrs. Ferrill offered him her place at $10,000, but he declined to give it on account of the supposed cloud over the title, caused by the outstanding judgment of Prothro. Sims advised him to buy. Ultimately, Sims agreed to give the widow $10,000 cash for the place, and she agreed to take it. She made him a deed before receiving any money, and afterwards he offered her $3,000, and told her he had taken up the Prothro fi. fa., and that the sum offered was all that was coming to her. She, at the time, left the money where he placed it, in some indignation at the small amount offered her, but afterwards received it from him, by express, in Albany. Other parts of the evidence show that the Prothro fi. fa. amounted to about $4,000. It nowhere appears that Sims ever paid the balance due, about $3,000. Sims denies his fiduciary relationship to the widow, and says she knew of the existence of the Prothro judgment before he told her of it, and feared it had a lien on her property, and that she greatly desired to sell on that account, before he spoke to her upon the subject. He also says it was distinctly agreed that he should take up the Prothro fi. fa. with a portion of the money.

All this conflict of testimony was proper for the jury to pass upon, but does not present itself in such a shape as to justify this Court in setting aside the verdict. It may be remarked, however, that the testimony of I. G. Drake, a wetness introduced by the defendant himself, seems to corroborate the evidence of the widow, that the $10,000 was to be paid to her, and the purchaser was to take the risk of the Prothro judgment. The answer of the defendant was waived, and was not sworn to. , During the trial, complainant was permitted to prove, over defendant’s objection, tlie sayings of Mrs. Fer-rill to Threlkeld, for the purpose of showing her unwillingness to sell prior to Sim’s conversations with her about the defectiveness of her titles. One of the counsel for complainant, during the trial, made marginal marks on the defendant’s answer to direct himself in argument. Defendant moved the Court to compel him to strike them out, which the Court refused. It did not appear that those marks conveyed any idea affecting the merits of the case. In the course of the argument, counsel for complainant read certain admissions of the answer to the jury as evidence of the facts contained in them, the whole answer being before the jury as pleading, but not as evidence. Counsel for the defendants .objected to this, unless the whole answer were admitted as evidence before the jury. The bill was filed to set aside the sale and for an accounting. The case, in behalf of complainants, was presented to the jury in two views : 1st. That the sale was fraudulent and should be set aside. 2d. That if not fraudulent, the complainant was entitled to an account for the unpaid balance due on the purchase. The jury found a .verdict setting aside the sale. Many of the assignments of error are upon the charge of the Court on the right of complainant to an accounting. The jury having rendered a verdict setting the sale aside, which we are not inclined to disturb, upon the ease made, it becomes unnecessary to consider the assignments of error upon the charges applicable to the second position taken by complainant. Our judgment is:

1. The bill having charged that Mrs. Ferrill was induced to sell her land, by the representations of defectiveness in her title by Sims, her brother-in-law, and that he stood in a fiduciary relationship to her at the time, and that she would not have sold but far such representations, and he having based his defense, among other things, upon her willingness and anxiety to sell, independent of any representations made by him to her, it was competent for complainant to prove her sayings to Threlkeld, for the purpose of showing her unwillingness to sell, just before her conversations with Sims upon, the subject.

2. It was not error in the Court to refuse to compel counsel for complainant to strike out the marginal marks made by him on the answer, it not appearing that those marks conveyed any idea affecting the merits of the case.

3. The admissions made in the answer, though a sworn answer was waived, stand upon the same footing with any other admissions, and may be relied on by complainant as evidence of the fact admitted; the whole answer being before the jury, and the admissions being subject to such qualifications as may be gathered from other parts of the answer, but the jury are not bound to believe the qualifications.

4. A sale of land of a testator, or intestate by the executor or the administrator in the manner prescribed by law, where the estate is insolvent, divests the liens of judgments obtained in the lifetime of the testator or intestate, and the creditor must look to the proceeds in the hands of the representative of the estate.

5. Trust and confidence reposed in a brother-in-law by his widowed sister-in-law requires the utmost good faith and fair dealing in any contract of sale between them. A misrepresentation of the law by the brother-in-law to his sister-in-law, whereby she is led to believe her title to property held by her is invalid, and on this account she sells it to him, which sale is much to his advantage, vitiates the sale at her election, even though such misrepresentation was made in good faith. Code, 2594.

6. Where, under the foregoing relations of trust and confidence, a sale is effected between the parties during the war for Confederate money, which is to be paid in cash, and the brother-in-law applies a portion of the money to the extinguishment of a lien, supposed to rest upon the property without the widow’s cousent, but in accordance with what he alleges, and she denies to have been the bargain, pays the widow a portion, and retains a large portion in his own hands, without her consent, and for which he does not clearly account, she is entitled to a decree setting aside the sale upon her accounting for the Confederate money actually received by her at a fair valuation.

'Whether there was trust and confidence reposed by Mrs. Ferrill in Sims; whether, under such circumstances, he misrepresented to her the legal effect of the Prothro judgment upon her title, and whether she agreed that that judgment might be paid off with a portion of the $10,000, which Sims agreed to give her for the property, were questions for the jury. Their finding covers them and there is no ground for disturbing it. His agreement to pay cash, and his failure to do so, the money agreed to be paid being a rapidly depreciating currency, was alone, in all probability, a good ground for annulling the sale. So, at least, it has been intimated by this Court in Smith vs. Bryan, 34 Georgia, 64, in the body of the decision, not contained in the head notes.

7. There is evidence to sustain the verdict in this case, and we find no material error in the charge, or the refusals to charge, of the Court.

Judgment affirmed.