Beale v. Hall , 22 Ga. 431 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

[1.] At the trial of this cause the following order was passed by the Court: “ It appearing to the Court that Oswell E. Cash-in, plaintiff on the record, was administrator in virtue of his office, as Clerk of the Superior Court of Richmond county, that said Oswell E’s term of service has expired and that Benjamin F. Hall is Clerk and ex-officio administrator of Gazaway Beale, be, and is hereby made a party plaintiff as such administrator, in lieu of said Oswell E. Cashin, the said Benjamin F. having been by the Ordinary of said county, appointed administrator, de bonis non, in virtue of said office of Clerk of the Superior Court of said county, and letters of administration having been issued to him, which are now here to the Court shown.”

The order was objected to by counsel forthe plaintiff in error* The objection was overruled and the decision of the Court is excepted to. The order shows that -the Court below held, that administration in cases like the present, when granted to the person who is Clerk of the Superior Court, expires with his term of office, and that it becomes the duty of the Ordinary to grant letters to his successor. It also expresses the judgment of the Court, that the Clerk of the Superior Court became ex-officio administrator of the intestate’s estate. These propositions are not sustained by the act of the General Assembly. Pamp. ’51 & ’52., page 92. If the office of administrator were made by law appurtenant to the office of Clerk of the Superior Court, the administration would vest in him, in virtue of that office. His commission as Clerk would become his commission as administrator, and there would be no necessity for his appointment by the Ordinary. If the statute had vested in the Clerk of the Superior Court the right only, to the administration on the decedent’s estate, to the exclusion of all other persons, then the Ordinary must have made the grant to him. He would have had no discretion. But such is not the statute. It does not vest the administration in the Clerk, nor does it vest in him an exclusive right to it. It makes it the duty of the Ordinary to vest the administration of the estate in the Clerk of the Superior or Inferior Court of the county, or in any other person or persons in said county, whom he shall deem fit and proper for such administration. The object is to ensure the administration of estates. The Ordinary is required to give thirty days public notice before he grants administration under the act, to the end, no doubt, that persons entitled to it under the law, as kindred or creditors of the deceased person, might apply and take it, if they desire to have it. If there be ho application, then the Ordinary exercises his statutable discretion by bestowing it on some fit and proper person of the county. The Clerks are mentioned, not to control the discretion of the Ordinary, but simply as a legislative indication of persons to whom, from their position, it might be safe to commit so important a trust. The administration, when granted, vests in the person to whom it is committed, to be revoked or vacated as ordinary administrations. To hold that the administration, when granted, followed the office, would deprive the Ordinary of the discretion manifestly given him by the act, and by possibility, devolve it on a person destitute of the business or moral qualifications to discharge its duties. The administration granted to Cashin, did not, therefore, abate or expire with the expiration of his term of office, but his office of administrator continues, and is on the same footing of administrations granted in ordinary cases.

[2.] Letters of administration are admissible in evidence to prove' title, and authority to sue, and no averment in the pleadings is necessary, of the grounds upon which the administrator became entitled to them. The words “ Clerk of the Superior Court of Richmond County,” in the letters of administration to Osweli E. Cashin, might be rejected as surplusage, and they would be good.

[3.] The evidence of Rhodes and Greenwood, does not prove, nor tend to prove, that the deeds relied upon by the defendant were not what they purported to be, absolute bills of sale; but the object was no doubt to prove that, absolute bills of sale as they were, they were obtained by the fraud of the defendant. He told one of the witnesses he intended to fix Gaz’s property. He said to the other, that he was on his way to Mr. Dawson’s to get him to write a bill of sale to secure the property to deceased’s wife and children, as deceased was a frolicksome man ; and said something about securing it against creditors. Defendant told him on his return, he had secured the property. This was certainly evidence for the consideration of the jury, on the issue of fraud or no fraud, on the part of the defendant — whether it was a contrivance of his own to induce the deceased to convey the negroes absolutely to him. These witnesses do not connect the deceased with a scheme, originating with himself, or concerted with others, to defraud his creditors. If the plaintiff had offered evidence to prove that his intestate had planned a scheme to defraud his creditors, and in execution of it, had conveyed his property, it would have been inadmissible, unquestionably, in this action, but he certainly cannot be precluded from proof that his intestate was circumvented and induced by the defendant to couvey his property absolutely to him, under the apprehension that his imprudent course of life might bring upon him pecuniary embarrassments, which would deprive him and his family of the means of support. There is no evidence in the record showing that the intestate was indebted at the time of the conveyance, or that he proposed the transfer of the property. The evidence was admissible to enable the jury to determine whether the intestate was the author of a fraud against his creditors, and executed the bill of sale in furtherance of his project, or whether he was the victim of the contrivance of another, who excited his fears and obtained a conveyance of his property without consideration, under the pretext that he would hold it for his benefit or that of his family. If the former, the administrator ought not to recover; if the latter, the defend^ ant should not be allowed to retain the property. 1 Greenleaf on Ev. §284; Logan and others vs. Bond, 13 Ga. Rep 201.

[4.] The refusal of the Court to allow the defendant below to withdraw his announcement that he had closed, is excepted to. The object was to re-examine the witness Simpson, and to prove that at the time the defendant paid Gaza-way Beale five hundred dollars, both Beales being present, the defendant asked Simpson whether the title papers he already had, would do ? and Simpson told him they would. This Court has held that the Judges of the Superior Courts have “ the discretionary power to relax the rule in regard to the examination of witnesses where justice requires that it should be done; and the judgment of the Court will not be reversed for the relaxation of the rule, or the refusal to relax it, unless the error be gross and palpable.” Walker vs. Walker, 14 Ga. Rep. 250. Was there gross error, or any error at all in the refusal of the Court to allow this witness to be reexamined, to make that proof? The witness had been examined. He testified that the plaintiff in error borrowed $500 or $600 from him, to finish paying for two negroes, and that he (plaintiff in error) paid deceased the money. Gazaway Beale said he was satisfied, and that plaintiff in error had paid him all the money, and said it was for the purchase of the negroes. This is what he testified to in regard to Gaz. Beal’s statement. He, about this time, heard the plaintiff in error say that Christian wanted to buy one of Gaz’s boys. The object of the conversation was to borrow money from witness to pay the balance due by the plaintiff in error to the deceased, for the negroes. The plaintiff spoke of them as Gaz’s negroes. Defendant said they were family negroes, and if they were sold, he would buy them himself. This conversation took place on Saturday. On Saturday the money was borrowed and the transfer of the bill of sale was made to witness. On Saturday the plaintiff in error said that Christian wanted to buy one of Gaz’s negroes, and that they were family negroes, and if they were sold, he would buy them himself. And yet the witness says the object of this identical conversation was to borrow money to pay the balance due by the deceased for the negroes. The Court below had a right to infer from this testimony that, if what plaintiff in error said was true, to-wit: that if the negroes were sold he would buy them himself, he had not bought them when he wanted to borrow the money; and that, if he had not bought them, he could not have paid already a part of the purchase money, and that he could not have wanted to borrow money to pay the balance ; and to hold that the evidence was not therefore material. The object of the par ty in wishing to make the additional proof by witness, was to enable him to insist upon it before-'the jury as an implied-admission of the sale of the negroes. The question was not propounded to the deceased, nor does it appear that his attention was particularly called to it, or that he was bound to reply. If he had made no sale, he could not have imagined that he was called on to deny it. He was not appealed to. This kind of evidence ought to be cautiously received, and never, unless the circumstances show that a man of ordinary prudence would have spoken. Before uncontradicted statements in the presence of a party are held to be implied admissions against him and his interests, there should be evidence of direct declarations of that kind which naturally call on him to contradict them. 1 Greenleaf Ev. §199. There was, therefore, no error in the refusal of the Court to re-open the case to admit the proposed evidence.

[5.] The counsel for plaintiff in error, requested the Court to charge the jury, that, “if they find Benjamin F. Hall, Clerk ■ of the Superior Court, is not the legally appointed administrator for Gazaway Beale, they ought to find for the defendant,” There were two sets of letters of administration. The Court below had already decided that the grant to Cashin was vacated by the expiration of the term of his office as Clerk of the Superior Court, It was upon this assumption, that the Ordinary granted the letters to Hall. It was not the case, then, in the opinion of the presiding Judge, of a second grant of administration during a subsisting good administration. There was no issue before the jury between the two administrators. The letters to Cashin were not offered as evidence to the jury, and could not have been, for they were offered by the plaintiff not to prove title in Cashin, but were offered as evidence to the Court to lay the foundation, or proof of the expiration of his office of Clerk of the Superior Court and the election of Hall, for the order substituting Hall as plaintiff for Cashin in whose name the suit had been instituted. If this were so, the only letters of administration before the jury for their consideration, were the letters granted to Hall, the substituted administrator, and his letters were conclusive of his right to sue — just as conclusive as those of any administrator — and the charge of the Court, in this aspect of the case, was right If the letters of administration granted to Hall were void on account of the prior grant of administration, which had not. been vacated or become null, he had no title, and could not recover, but there, must have been evidence of this before the jury. The jury have no right to consider evidence submitted to the presiding Judge alone as the foundation of an order deemed by him necessary in the progress of the case.

The judgment of this Court reverses the judgment of the Court below, making Hall the plaintiff in the cause, in lieu of Cashin. The administration of Cashin is good until avoided by judicial sentence. The second grant does not avoid it. If the Ordinary were to grant administration to the wrong, party, and were then to commit it to the right, we think the better opinion is that, even in that case, the latter is not a revocation of the prior grant, but that it must be done by judicial sentence. 1 Wms. on Exrs. 390-1.

[6.] We think there was evidence before the jury, besides the bills of sale, of the passing of the title to the slaves from Gazaway Beale to the plaintiff in error. It is true, it was slight, but still it was evidence. The possession of the negroes had passed from Gazway Beale to Charles T. Beale. The latter was in possession of them in Burke county, and had paid taxes for them. Simpson testified that he borrow ed money from him to finish paying for the negroes. That he paid Gaz. Beale the money, who said that he had paid him all the money, and that it was for the purchase of the negroes. This was some evidence. What degree of credence it was entitled to, and whether the force of it was not impaired, and to what extent, by the statements of Charles T. Beale to the same witness, was a question for the jury.

[7.] The counsel for the plaintiff in error, requested the Court to charge the jury, “that if they find that the bills of sale, made by Gazaway Beale to the defendant, were made in fraud, and if Gazaway Beale was a party to the fraud, they are good as against the maker of them, and carry a good title to the defendant, and that in cases of fraud by both parties, the Court will leave them where it found them.” The Court refused to give this charge, and it committed no error in refusing it. There is no evidence in the record of a purpose on the part of Gazaway Beale, to perpetrate a fraud upon any one. In every case of fraud, there must be a person to be defrauded, and a subject in respect to which the fraud is to be committed. It cannot be contended that Gazaway Beale intended to perpetrate a fraud on Charles T. Beale, by conveying to him valuable negroes, without consideration. He was not the party to be defrauded. If both parties contemplated a fraud, it must have been contemplated against some one, or a class of persons, as creditors. There was no evidence that Gazaway Beale had creditors prior or subsequent to the transfer of the property, the payment of of whose claims he had manifested a desire to avoid. It was not possible, therefore, that he could have meditated a fraud against creditors. The charge as given, was unnecessary and uncalled for by the facts in proof; but it was certainly erroneous as a principle of law, and inasmuch as the case must go back for a new trial, it is proper that we should pass upon it, as the testimony on a future trial may be different. If a party conveys property for the purpose of defrauding creditors, which purpose is to be established by proof sufficient to establish the fraudulent intention, the creditors may avoid the conveyance, but the fraudulent party or his personal representative never can.

[8.] Although the party may die, and the administrator on his estate represents creditors as well as distributees, he can no more move to avoid the deed than the party himself could, were he in life. The creditors may move in the matter, but no one else. In such cases the administrator is estopped by the fraudulent act of his intestate.

[9.] There was no error in the instruction of the Court to the jury, to correct their verdict, and put it in proper form. They were not directed to alter it in matter of substance, nor did they do it.

[10.] It was discretionary with the presiding Judge to al low the jury to be polled, or not. He refused it in this case. Nothing appears in the record, (if this Court considered itself at liberty to control the discretion of the Court in this case,) to show that it was improperly exercised.

[11.] A motion for a new trial was made in the Court below, on all the grounds and points upon which we have passed our judgment above, and on the additional ground, that the verdict of the jury was contrary to law, evidence, and the preponderance of evidence. The motion was refused on all the grounds. The last alone, remains to be considered. We know of no principle of law, to which the facts in proof were applicable, violated by the finding of the jury. It was insisted on the trial of the cause, that the negroes were conveyed in fraud of creditors, and yet there is no proof that the maker of the bills of sale was indebted to any considerable amount, or at all, at the time of their execution, or afterwards. Charles T. Beale said something about securing the property against creditors, but Gazaway Beale was not present, and there is a total absence of proof that there were creditors who were never paid. But Charles T. Beale said he intended to secure the property to deceased’s wife and children, as deceased was a frolicksome man. If existing creditors had been provided for in an instrument drawn for that purpose, I will say that there might have been no legal objection to it. But instead of securing it to deceased’s wife and children, the bill of sale was made to himself. The jury were certainly at liberty to infer from this proof, that Gazaway Beale did not contemplate a fraud upon his creditors, especially as no ■debts were proven to have existed at that time; and they were equally at liberty to infer, that Charles T. Beale, by suggesting that his habits might lead to future embarrassments, induced Gazaway Beale to make the bill of sale to him. There could have been no fraud’in Gazaway Beale, if he had no creditors to defraud; there could have been no fraud on the part of Charles T. Beale against the creditors oí Gaza-way Beale, if he had none. Hence, if there were no creditors, there was no violation of the rights of creditors; and the finding of the jury, if they believed there were no creditors, that the administrator might recover the negroes, and was not estopped by any proof before them of a meditated fraud upon creditors, was not a violation of the principle of law, enforced in favor of creditors — that as between parties equally at fault in an illegal transaction, the condition of the party in possession is the better condition. The verdict of the jury was not, therefore, contrary to law. In our judgment, it was not contrary to evidence or the preponderance of the evidence. The defendant in the Court below, claims to have purchased the negroes, Matt and Billy Buck, on the 18th of February, 1848, and Martha on the 2d of September, 1851. His bills of sale are of these dates. It was insisted, in the argument before this Court, that there was a subsequent purchase of the slaves by Charles T. Beale. The plaintiff made out his title in the Court below, by proof by Dr. Martin, that defendant (plaintiff in error) said to him in 1850 or 1851, that Buck belonged to the deceased; by Day, that the deceaséd had possession of the negroes when he left Columbia county, two or three years before his death; and by Christian, that he had bought Buck of deceased, on the Friday before his death, and he saw defendant in relation to the trade, who said there was no incumbrance on him; that he hoped he would not buy them, as they were family negroes, and if Gaz was bent on selling them, he would buy them himself; he did not deny the right of Gaz. to sell them, but said the title was in himself. The evidence of title on the part of the defendant was, that about eighteen months before the trial, which took place in October, 1S56, he called on Dr. Campbell to treat the negroes for hernia. The bill of sale for the negro men was proven and read in evidence. No money was paid, nor notes given in the presence of the witnesses, but the bill of sale was handed to Gazaway Beale, who was to deliver it on receiving the notes, and he told one of tire witnesses, two or three days afterwards, that he had received the notes. The bill of sale for Martha was proven and read in evidence. One of the witnesses testified to deceased’s hand writing, and the other to the execution of the bill of sale, but neither of them proved the payment of any consideration. The only remaining evidence to this point, is the evidence of Simpson, that defendant had borrowed money from him to finish paying for two negroes, that the money was paid to the deceased, who said it was for the purchase of the negroes. The jury upon this testimony, had certainly a right to find, and no doubt did find, that the plaintiff had no right to hold the negroes, Matt and Buck, under the bill of sale executed in February, 1848. In 1850 or 1851, he told Dr. Martin that Buck was the property of Gaz. Beale, and when he paid him the note for the hire, he said he was his agent. He told Christian, on the Friday before his death, when he saw him respecting the trade he had made with Gaz. Beale for Buck, that there was no incumbrance on him. If Gaz. was bent on selling them, he said he would buy them himself He did not deny the right of Gaz. to sell them, but said the title was in himself. Roberts testified, that Gazaway Beale wanted to turn the negroes into money, and sold them to Charles T. Beale for that purpose, and yet no money was paid. The witnesses testify that notes were to be given, and that Gaza-way Beale said he had received the notes. When Simpson .saw the money borrowed from him, paid, no note was given up, and if his testimony applied to the sale of 1848, a note ought to have been given up. But it is evident from Charles T. Beale’s admissions, that he claimed no right to the slaves under the bill of sale. Now, in regard to a second sale to be implied from Simpson’s evidence, already stated, the juiy had a right to draw their own conclusions. The same witness testifies, that he heard plaintiff in error say that Christian wanted to buy one of Gaz’s boys. In this conversation he spoke of them as Gaz’s boys, and said they were family negroes, and if they were sold,, he would buy them himself Now, this was a conversation held, the witness says, when he came to borrow the money to pay the balance due by defendant to deceased for the negroes. The jury were the proper judges of this evidence, and they did judge of it. It seems from the informal verdict first returned by them, that they considered that the plaintiff in error should be allowed the @500 paid as a part of the hire of the negroes. Dr. Martin had paid him hire, and Henry Dawson did the same thing.

In regard to Martha, the evidence is less complex. There was a bill of sale. A witness saw it executed, but he does not testify that he saw either a note given or the money paid, and yet he says, that he states all he knows in favor of the defendant. Whether he obtained the title to Martha in accomplishment of his expressed purpose to fix Gaz’s property, and to secure it to his wife and children, the jury were the judges. He did not probably own Martha at the time that Matt and Buck were conveyed; for Richard B. Day testifies, that he knew Matt and Buck, and afterwards deceased had a woman named Martha. We regret that the ground taken iia the ¡motion for a new trial, makes it necessary to go so ful>ly. into, the consideration of the evidence. It was unavoidable. "We -concur with the Court below, that a new trial ought ssot be granted on this last ground, but reverse the judgment .and .order a new trial, on the grounds herein specified as er~mrs 'in the decisions of the Court below.

Judgment reversed