Arrington v. Cherry , 10 Ga. 429 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] We hold, in the first place, that the order granted by Judge Tracy, at Chambers, to sell this trust property, was a nullity.

[2.] Chancery jurisdiction in this State is conferred upon the Superior Courts, and not upon the Judges thereof. Prince, 447.

[3.] But conceding the invalidity of this order, was there not ample evidence before the Jury to authorize the verdict ? Samuel J. Ray testified, that about the time of the sale to Cherry, or previous thereto, Mrs. Morris, the cestui que trust, in a conversation with witness, stated that after discharging his debt, contracted for the support of herself and family, she was still very much involved, and would be compelled to sell a portion of her property to relieve her from embarrassment, and that she offered to sell Henney, the negro in dispute, to witness, but he declined purchasing, for the reason that she was so trifling that he would not have her.. Witness called on Cherry and communicated to him these facts.

It will not be disputed, I apprehend, that it was entirely competent for the trustee to sell this property, with the consent and approbation of the cestui que trust, there being no restriction in the deed, or limitation over to children or third persons, and with Ray’s testimony before them, uncontradicted and unimpeached, the Jury were not only justified in rendering the verdict which they did, but they could have legally returned none other.

Taking this view of the case, we deem it unnecessary to consider the other points contained in the bill of exceptions. I would remark, however, that as it respects the charge of the Court, instead of fault being found with it by the plaintiff in error, it occurs to us that complaint might properly have come from the other side; for while the door was thrown wide open to assail this transaction for fraud or other cause, and the Jury were left free and untrammelled, and clothed with plenary powers to set aside the judicial sale as void, the Judge omitted to instruct them, that notwithstanding this judicial sale -was void, for want of power to grant it, notice to the cestui que trust, fraud, the misapplication of the proceeds, or any other cause, still, if Mrs. Morris voluntarily assented to it, and the transferwas made at her instance, the title was divested, and the present trustee could not recover the property.

[4.] Notwithstanding the misdirection of the Court, therefore, upon some of the questions raised on the trial, being entirely satisfied that justice has been done, and that a new trial ought to produce the same result, we are unwilling to send this cause down to be re-tried.

In the leading reported decision on the subject of granting new trials, that of the Dutchess of Maganier, (2 Salk. 646,) the Court admitted that the verdict was against law, but held that, inasmuch as the justice and conscience of the case were with the verdict, they would not interpose.

In Brazier vs. Clap, (5 Mass. R. 1,) Sedgwick, J. said, “ Even if fault could justly be found with the Judge’s direction, I do not think that a new trial ought to be granted. A new trial ought never to be granted, when the Court is perfectly satisfied that on a second trial the same verdict must, by law, be given, although there might have been some mistake by the Judge at the trial.”

In Springer vs. Bowdoniliam, (7 Greenl. Rep. 442,) the Supreme Court of Maine held, that admitting a question at Law had been erroneously submitted to the Jury, the Court would not, for that cause, disturb the verdict, provided they were satisfied that it was correct.

In Aldrop vs. Magill, (4 Day. 42,) the Court, after recapitulating the facts, say, “ Whether the charge of the Court was perfectly correct in point of law, it is unnecessary to determine. Justice is done and a new trial ought not to be granted.”