Bowden v. Achor , 95 Ga. 243 ( 1895 )

Lumpkin, Justice.

We have directed the reporter to prepare a condensed statement of so much of the record as may be necessary to an understanding of our rulings in this case. The facts are somewhat complicated, and the pleadings are voluminous, but none of the legal questions ■ presented are very difficult. Indeed, many of the propositions announced in the head-notes are axiomatic. The chief trouble we have encountered in dealing with the case has been to master the record, which, by reason of much tedious and unnecessary detail, and the raising by counsel of many small and frivolous questions, has required the exercise of much patience and the consumption of much precious time.

1. An examination of the plaintiff’s petition will show that she claims to have been defrauded of her property by a series of transactions which involved her in a complete network of fraud, in which all the defendants were more less concerned. All of them did not participate directly in all of the alleged fraudulent acts, but the acts of each were so connected with the acts of the others, as to make them all necessary parties to a proceeding to undo the consequences of all the frauds alleged to have been committed, and render complete justice and relief to the plaintiff. The prayers of the petition were sufficient to accomplish this end, appropriate relief having been asked as to each wrongdoer.

It must be understood that we are now dealing with the demurrer, for which purpose the allegations of the petition are taken as true, we not undertaking, of course, to say that they are so in fact. We think the demurrer, on the grounds taken, and which are indicated in the first head-note, was properly overruled. A somewhat analogous case is that of Cohen & Co. v. Wolff & Buchwald et al., 92 Ga. 199. There it was held, that a number of plaintiffs, each having a separate interest in his own claim hut all having a common interest in defeating alleged fraudulent mortgages executed by a common debtor, should have been permitted to join in one action against that debtor, and each to obtain the relief to which he was severally entitled. Here the plaintiff brings together several defendants who have combined to defraud her, each, however, having his own separate interest in the fruits of the fraud they had perpetrated; and we think she should be allowed to sift the matter out to its legitimate legal and equitable consequences, and obtain from each of the conspirators the relief she ought to have against him.

2. A purchase of land, so far as the consideration is concerned, may be perfectly fair to the seller at the time of the sale, and yet the same land may, within a few years, or even less time, become very much more valuable. This is a matter of common knowledge. Consequently, the value of the land at the time of a trial to rescind a sale for alleged inadequacy of consideration cannot fairly throw light on the question of its value years before, especially where there has been a very great and rapid enhancement in the values of all lands in that vicinity because of ,the building of a town. Evidence of this kind is not only irrelevant, but may very seriously and unjustly injure the defendant by arousing against him a prejudice in the minds of the jury.

3. The rule announced in the third head-note is too well established to require any discussion at our hands.

4. We deem it unnecessary to apply to the special facts of this case the rule stated in the fourth head-note. It seems that.numerous instances occurred during the trial when the presiding judge exercised his right to ask questions of the witnesses. In so doing there was, of course, no impropriety, unless he so framed his questions as. to intimate an opinion of his own upon the facts, or used some expression calculated to prejudice the rights of either party. It would be unprofitable to scrutinize closely the various colloquies occurring between the judge and the witnesses at the trial under review, for the purpose of determining with absolute precision whether he erred in the manner indicated or not. If he did, we are perfectly sure that this eminent and upright jurist did not do so intentionally, and it is notin the least probabie that the occurrences of that trial will be repeated at the next. Indeed, such a thing is hai’dly within the range of possibility.

5. Where a paper of any kind is material as bearing upon the issue under investigation, the paper itself is generally the best evidence of its contents. Secondary evidence may be resorted to when the original is inaccessible. The courts of this State have no power to compel the production of a paper in the possession, custody or control of a person in another State, when such person is not a party to the cause. In such an instance, the paper may well be said to be inaccessible. If it were a duly recorded paper of which a legally certified copy could be obtained, it might be incumbent on the party desiring the benefit of this evidence to produce such copy; but where no such secondary evidence is obtainable, a witness may be permitted to testify to the contents of the original, if within his personal knowledge and he is competent to do so. In this connection see Lunday et ux. v. Thomas et al., 26 Ga. 537.

6. The charges of fraud and conspiracy in this case were very wide and sweeping. Certain deeds and other evidence were offered, but objected to as irrelevant. At first glance, the objection would seem to be good; and at best, the evidence in question was, apparently, of but little value in throwing light upon the transactions under investigation. We are not, however, after a study of all the evidence, prepared to say that which we are now considering was totally irrelevant, and therefore think it was properly admitted, it being for the jury, of course, to determine what weight to give it.

In admitting the evidence referred to, the judge remarked he thought it was “ applicable.” Exception to this remark was taken, it being alleged that this amounted to the expression of an opinion by the judge upon the evidence. This complaint, we think, is rather hypercritical,' for it is evident that the word quoted was used in a sense synonymous with “ admissible,” for the judge immediately added that if the evidence had no relation to the question at issue, it would do no harm.

7. A party who has once had a title to land, and who has sold and conveyed the property and gone out of possession, will not be permitted to “talk away” the title of another holding under him or his vendee. Consequently, declarations of such a party, made after his connection with the title has ceased and at a time when he is not even in possession, in disparagement of the title under which he formerly claimed, are inadmissible to affect his successors. This is another well settled rule which will be recognized without argument.

8. In charging the jury, the court stated that the most important question they had to determine from the evidence in the case, was the mental condition of the plaintiff at the time she made certain deeds. We are inclined to think that this was undoubtedly true; but as there were a number of important issues involved in the trial, it would, perhaps, have been better for the court not to have said this. Indeed, the judge should never single out and present to the jury, as the main or controlling question in the case, a particular issue, unless, beyond all doubt or controversy, it is such in fact.

■9. The court instructed the jury that if the plaintiff was partially imbecile in mind, and if “this partial imbecility consisted in her mental inability to understand the value of her property; to be in such a state of mind as that she would do what any friend would request her to do in respect to the disposition of her property; that she did not understand her rights; that she was mentally unable to protect herself in her negotiations with others in respect to her property; that she did not understand the value of money, and that she did not know one coin from another, or one bill of currency from another,” and if they believed from the evidence this was her mental condition, and were thereby convinced she did not have sufficient mental capacity to make a contract, she would not be bound by certain deeds she had executed, and they would not stand in the way of a recovery by her. We see no error in this charge, as against the defendants. It hypothetically stated facts which, if true, would show a want of mental capacity to contract, and then, in effect, instructed the jury that if they were convinced of such want of capacity, the fact of having executed the deeds in question would not defeat her action. The use of the word “convinced” might have operated a little too strongly against the plaintiff, but there was nothing in the charge of which the defendants could properly complain.

10. The error pointed out in the tentli head-note is so obvious that it will appear at a mere glance. The words “no bar,” in the phrase “that deed would be no bar to her recovery,” should evidently read “a bar.” Were it not that this phrase appears precisely the same both in the copy of the motion for a new trial and the copy of the charge of the court, we would be strongly inclined to think a clerical error had been committed. As it is, we are quite certain the error was the result of mere iu advertence.

11. In this ease some of the evidence consisted of answers to interrogatories; various documents were introduced, and quite a number of witnesses were examined on the stand. It was therefore error for the judge to instruct the jury that “the evidence is what the witnesses swear before you on the stand.” See McLean v. Clark et al., 47 Ga. 26, twelfth head-note.

12. The court charged, among other things, as follows: “ Counsel for the plaintiff take the position, that although the state of her mind might not have been such as to incapacitate her. from making a contract, yet she was a person of weak mind, and she sold the land for a grossly inadequate price, and that there was a great disparity of intellect between her and the persons who took her deeds. If you should believe from the evidence that both of these positions are true, then you would be authorized to set aside the deeds . . .; but if you do not believe both, you would not be so authorized.” Ilis honor was evidently attempting to give in charge to the jury the substance of section 3179 of the code; but as the instruction quoted was capable of being construed into a statement of three contentions by counsel for the plaintiff, the phrase “both of these positions” may have been misleading.

13. In support of the ruling announced in the thirteenth head-note, it is only necessary to cite the case of Harris & Mitchell v. McArthur, 90 Ga. 216, which follows a long line of previous adjudications by this court to the same effect. The law providing for the appointment of official court reporters may offer good reason for a repeal of section 244 of the code; but as matter of fact, that section has never as yet been repealed by the legislature.

14. In the fourteenth head-note we have carefully endeavored to state the well known rule requiring one who seeks the rescission of a contract on the ground of fraud, to restore or offer to restore the consideration received, as a condition precedent to bringing the action. In Strodder v. Southern Granite Company, 94 Ga. 626, it was cautiously intimated, but not decided, that there might be an exception to this general rule resulting from inability, by Z’eason of poverty, to restore. Ve do not mean to now decide whether or not an exception to the Z’ule announced may exist for such a reason as that above indicated, or for any other, because no such question is now pz’esented for adjudication. But we do hold without hesitation that, under the pleadings and evidence in the case before us, the verdict izi the plaintiff’s favor was, for the reasons stated in the head-note, absolutely without legal justification.

15. In the last head-note, we have indulged in a modest protest against the manzzer in which this case was tz’ied and the motion for a new trial prepaz’ed. "What we say there is by no means exhaustive of the objections we might have stated to this manner of ti'ying and bringing up cases. In all seriousness, counsel might have spared themselves much worry and annoyance, and have saved this court much unnecessary labor’, by pursuing a different course. The writer once heard one of the most distinguished and successful lawyer’s who ever lived in Geoi’gia facetiously remark that the questions in a noted case wez’e divisible into “pints” and “pintees.” Ve would be very much obliged if our professional brethren would hereafter omit the “pintees,” or at least the most trivial and unimportant ones.

Judgment reversed.