Cornett v. Fain , 33 Ga. 219 ( 1862 )

By the Gourt —

Lumpkin, J., delivering the opinion.

1. This was a liquidated demand and bore interest, according to the ruling of this Court in Nisbet vs. Lawson, 1 Kelly, 275. Fain was compelled to recover the precise sum which Cornett received from Sims, or nothing. The amount being fixed by operation of law it was liquidated, and consequently boré interest.

2. There would be such a conflict of testimony, had the evidence excluded been admitted by the Court, as would prevent this Court from disturbing the finding of the jury upon the facts. As the case stood, the weight of evidence was strongly and decidedly for Fain, instead of Cornett.

3. Was the Court right in rejecting the testimony of Jos. J. Printup. The gift of the slave was complete from Cornett to Fain, independent of the declarations of Cornett. Upon the intermarriage of Fain with Cornett’s daughter, or shortly thereafter, Thena went into Fain’s possession, who, for some time thereafter, exercised acts of ownership over her. The law construes this into a gift. Subsequently, the girl is found in the possession of Cornett, who sold her to Sims, and it is proposed to prove by the witness, Printup, the sayings of Cornett while thus possessed of the negro, explanatory of the previous possession of Fain. It is clear, we think, that this cannot be done. The legal title of'Fain could not be divested in this way. The delivery of the slave by the father-in-law to the son-in-law, and the subsequent re-delivery by the latter to the former, are, in the eye of the law, very different things. The first, as we have said, constitutes a good gift; the latter amounts to nothing. There must be a conveyance from Fain to Cornett upon sufficient consideration. None such is shown or attempted to be proven. Upon the most favorable or best of the proof, it amounts only to this : “ We don’t like Thena; substitute another negro in her place.” Cornett, as the testimony shows, promised to do so, settling the property upon his daughter and her children. This he has never did nor offered to do.

We repeat, the legal title was in Fain. He has done nothing to divest himself ot it. His property has been sold to another, and repudiating the tort, he seeks to recover the purchase-money. He is entitled to do so. t

Let the judgment be affirmed.