Goodwyn v. Goodwyn , 20 Ga. 600 ( 1856 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] No authority has been produced to justify it, and we know of no practice to sanction the introduction of testimony not to impeach the veracity but the memory of the witness. It would be attended with great inconvenience, and hinder and delay the progress of business, by turning aside to form these collateral issues. Once open the door to this sort of investigation, and it would not be restricted to the memory, but would apply to any real or supposed deficiency in any other mental faculty.

By a cross-examination of the witness himself, as was done in this case, the Jury, whose province it is, will be enabled to decide, satisfactorily, as to the credit or weight rather to be attached to the testimony.

[2.] We are clear, that the Court was wrong in excluding the evidence of John W. Powell; he was a competent witness, and his testimony was material. And the party introducing him was not to be deprived of the benefit of it by a misunderstanding of the proof, on the part of the Court, that the admissions of the plaintiff were made to the witness under a negotiation for a compromise. The appeal to admit him when the mistake was discovered, was to the justice, and not to the discretion of the Court.

[3.] As to the acknowledgments made by the family, that the negroes in dispute belonged to Napoleon B. Goodwyn, and the claim set up by him to the property in the presence of the family and acquiesced in by them — the legality of this proof turns upon the fact of whether or not Mrs. Goodwyn was present. If so, they should have been received; if not, rejected.

[4.] As to the belief oí the two witnesses, William H. Goodwyn and Stephen P. Pool, it was improper, unless they . stated the facts upon which that belief was founded. They •might have testified as to the best of their recollection, that the negroes were the same that formerly belonged to Burwell Goodwyn; that they were in his possession up to the time of his death, and subsequently in that of his widow, until she removed to Georgia.

[5.] The first error in the charge of the Court is, that the possession of Burwell Goodwyn might be explained by his holding the property for Napoleon, his minor son.

[6.] The negroes were sold in 1822. The will of Mrs. ■Elizabeth Goodwyn, bequeathing this property to her grandson, Napoleon, was not made until the fall of 1830. Of course his title did not accrue until after that time. And yet, the negroes never changed possession, but were held by Burwell Goodwyn all this while. The circumstance referred to by the Court, therefore, did not explain the character of ¡Burwell Goodwyn’s possession.

[7.] But the main error in the charge, and one which goes to the foundation of the case, was, in instructing the Jury that if Elizabeth Goodwyn purchased the property at Sheriff’s sale, and Burwell Goodwyn acquiesced in that sale, and in the subsequent disposition of it by the will of Elizabeth Goodwyn, that then he would be estopped from denying her right, as well as the title of Napoleon, notwithstanding the sale was a sham.

[8.] Whether this be so or not, depends upon another very material fact, namely: Whose money paid for this property ? If Elizabeth Goodwyn’s paid for it, then it was hers, and she was entitled to will it with or without the consent and acquiescence of Burwell.- If, on the other hand, his money paid for it, not having got possession of the negroes, she never could have recovered them from him during her lifetime; neither could she will them after her death so as to enable her legatee to do so, notwithstanding the acquiescence of .Burwell in the will, unless detriment resulted therefrom.

£9.] Has any been proven ? Is it shown or attempted t0 be shown, that but for willing this property to Napoleon, his grand-mother would have given him other property ? How is lie damnified so as to entitle him to the application of the doctrine of estoppel ? His creditors who might have trusted 'Mm upon the faith of this legacy, are not before the Court complaining. Indeed, he could have had none at that day, on account of his tender years. Has any advantage accrued ■to Burwell Goodwyn, either over Mrs. Elizabeth Goodwyn or Napoleon ?

[9.] In the absence of all this, he is not estopped; and upon > the hypothesis that his money paid for the property at Sheriff’s •'sale, any act, declaration or agreement, on his part, is without • consideration, and cannot be enforced. This arrangement, if ; -fraudulent, can no more be enforced against him than its resaision could be at his instance, did the opposite party have . possession. The law and the Courts will leave them all where it found them. And the maxim of portior est applies.

If A sells property to B to defeat C, and A pays for it, 'although under the Statute of Elizabeth, the transaction is void as to C; still, it is good as between A and B; and A can recover the possession. Not so, however, if A paid nothing. IfB obtained possession, he could hold it as against A, and volunteers under him. But if he failed to get possession, he cannot ask the aid of a Court to compel the exe«ution of the covinous contract.

Here, then, is the hinge upon which this case turns, to-"•'wit: The bona Jides or mala fides of the real or pretended < Sheriff’s sale, and the further inquiry of injury or no injury to Napoleon by the acts and acquiescence of his father in the ' sale and will.

pLO.] We hold that the Court was authorized to charge as ■ it- did, respecting the Sheriff’s sale. , The parol or secondary ■evidence had been let in without objection; and the Jury, therefore, had a right to pass upon it. That the execution •w judgment under which the, sale was made, would have been •vMgher proof, if insisted on, there can be no doubt. Failing to procure this after due search, secondary proof would be admissible.

Although the Court might have been a little more guarded, perhaps, in stating the law, as to the Statute of Limitations, we think he charged it substantially as laid down hjA this Court, when this case was up before.