Black v. Thornton

By the Court.

Lyon, J.,

delivering the opinion.

We think the testimony of the witness, William H. Adams, was legal and admissible. He says the entries are in his hand-writing; that he has no recollection of the transaction; that he can only state by whom the property was pointed out from the entry. His invariable custom, when the property was pointed out at all, was to say in his levy and advertisement by whom; that he is satisfied from what appears from the papers shown him, that the property was levied on as the property of Daniel Thornton. His impression, that the negroes were sold as the property of Daniel Thornton, is based entirely on the entry on the execution; that it was pointed out by him. He stated nothing in his entries but what were facts. The rule on this subject, as stated by Mr. Green-leaf, is this: “If the party who made the entry is dead, or being called, has no recollection of the transaction, but testifies to his uniform practice to make all his entries truly and at the time of each transaction, and has no doubt of the accuracy of the one in question, the entry unimpeachéd is considered sufficient, as original evidence, and not hearsay, to establish the fact in question.” 1 Greenleaf on Ev., sec. 115; also, Williams vs. Kelsey & Halstead, 4 Ga., 373. But why was not the bill of sale made by the witness, as sheriff, under this sale, accompanied by the execution with the entries in question, sufficient evidence of the fact in controversy, without further proof?

2. The conversation and declarations between and among Reuben, Daniel and William D. Thornton, in respect to an outstanding title or claim to the negroes, and on the day of the sheriff’s sale, as testified to by the witness, Jeremiah Warren, was not objectionable. It was certainly competent for the defendant to show that Reuben Thornton bought without notice, if he could, and how he could do so otherwise than by showing what was said and done by Reuben Thornton and others interested in the sale, at and before the sale, I cannot very well see. It is not hearsay evidence only, but acts, a part of the circumstances surrounding and attending the sale and purchase. The testimony was certainly proper to go to the jury. But what it was worth or what it proved, is a very different question, as we shall see.

3. The plaintiffs were entitled to the charge requested; that is, “ that possession of the deed having been shown in the wife of William D. Thornton, one who took an interest under it, it is to be presumed that it was delivered properly and in immediate execution of the original purpose.” The delivery of a deed may be inferred from its possession by the grantee. The evidence of one of the subscribing witnesses to the deed was, “ that the deed was made for the purposes named and specified in the deed.” The fact that the deed did not actually pass out of the possession of Daniel Thornton at the time of its execution, does not affect the title or the presumption of delivery arising from the subsequent possession of the deed by the grantees. That fact — the retention of the deed by him at that time — is fully accounted for by the additional fact, testified to by the witness, that none of the grantees or persons taking an interest under the deed were present to receive it. The natural and legal presumption arising from the facts as proven, is, that the deed was actually delivered to the grantees or some one of them as soon after its execution as it could conveniently be done, and that when so delivered, it related back to the date of signing and sealing. Rushing vs. Shield & Ball, 11 Ga., 640; 4 Kent, 455, note a; Bunn vs. Winthrop, 1 Johns. Ch., 329.

We were not certain that we fully understood the point made, or intended to be made, in the request as stated in the fourth ground of motion for new trial, and if we did properly understand it, the Court were not fully agreed upon it; so we concluded not to pass upon it, but to leave it an open question.

4. The Court below erred in charging the jury, “ that the testimony which conflicts with that of the two Adams’, was that of Jeremiah Warren. The conflict being denied in this case, it was a question for the jury to determine, and not the Court.

The Court further charged the jury, in immediate connection with the foregoing charge: “ You are to consider the conflicting evidence and all the circumstances and appearance of the two Adams’ testimony and of Jeremiah S. Warren’s testimony, and say, are you satisfied, to a reasonable certainty, that the Adams’ spoke the truth, and that they are not mistaken as to what Reuben Thornton said ?” This charge is also excepted to, and we think the exception well taken. The form in which the proposition was put to the jury discriminated against the testimony of the Adams’. This ought not to have, been done, for all the witnesses testified to admissions and declarations; each had to depend upon his memory of what was said in their presence and hearing, and why may not Jeremiah S. Warren’s recollection have failed as that the Adams’ should ? The record shows no reason. There were two witnesses against him, and, so far as anything appears to us, they were equally entitled to credit.

The weight of the testimony was against that of the witness Warren, because they supported and corroborated each other, while Warren’s stood alone; that is, allowing that there was a conflict. But was there in fact any conflict between the testimony of these witnesses? We do not think there necessarily was. The testimony of all the witnesses may have been true. Notwithstanding the conversation to which Mr. Warren testified, Reuben Thornton may have known all about the deed of gift on which plaintiffs rely. After that conversation, and before the purchase, he may have heard exactly how the matter stood. He may, in fact, have known at the time. The Court ought to have charged the jury on this subject, that it was their duty to reconcile this testimony if they could, so that the whole might stand, if possible ; but if irreconcilable, then, the witnesses being equally entitled to credit, they must find according to the weight of the evidence, of which they are to judge.

We agree with the Court below, that “ a mere rumor brought to the knowledge of Reuben Thornton at or before the sale, or general report that there was an outstanding claim or conveyance, without defining what sort of conveyance or claim, to whom or who by, etc., is not notice to Reuben Thornton but when he adds, “ especially when he inquires of those most apt to know the truth, and receiving no intelligence, except that no claim or conveyance existed,” we differ with him. This may be true as a general proposition, but when considered in reference to the facts of this case, it is not true. There was no evidence before the Court that the notice Reuben Thornton had received was mere loose or vague rumor. The testimony of Mr. Warren is, that “ Reuben had agreed to furnish money to buy the negroes. Reuben said previous to the day of sale, that these negroes had been conveyed.” This implies that he knew or had heard more about this deed than a mere vague and loose report or rumor: he said that they had been conveyed. He had old Daniel and William D. brought into his presence to say whether the report was true or not. Now, if Mr. Thornton had heard about this conveyance previously, how did the denial of Daniel or William D. aid him, or why did he depend upon that information at that time ? for both of these men were interested in misleading him; or how does it appear that what he had heard about the conveyance was a vague and loose report? It is due to the Court below to say, “that in his charge he did tell the jury, if Reuben Thornton had notice of the deed, although it was denied by Daniel and William D., that he would be bound by the notice, and the jury wras to determine from all the facts of whether he had the notice,” but when he connected his understanding of the effect of Warren’s testimony with that of a report or rumor as notice, as I have already shown, he gave to that evidence an importance and bearing to which it was not entitled, and which was well calculated to mislead the -jury. The whole sense of the charge is, that Mr. Warren’s evidence showed that Reuben Thornton bought without notice, or at least without such notice as would affect his title; while, in the opinion of this Court, that evidence was strongly corroborative of the evidence of the Adams’, that he did have sufficient notice before the sale to put him on his guard and to buy at his peril.

Should we be mistaken in this, however, still there is nothing to show that after that he did not get full notice before he bought. Then, there was another and a very significant fact in the testimony which the Court lost sight of. I allude to the warranty from Daniel to Reuben Thornton, dated 27th April, 1841, just after the sheriff’s sale, for the identical negroes, and one othér. If Reuben Thornton got a good title by the sheriff’s sale free of notice, why take another and a warranty from Daniel for the same negroes ? All the presumptions arising from these facts were excluded by the direction given.

The evidence is strong — very strong — that Reuben Thornton bought with notice.

As the case goes back for a new trial, we have not felt it necessary to pass upon the question, whether the verdict is against the evidence, for on the next trial the evidence may be very different.

Judgment reversed.