By the Court. —
Jenkins, J.,
delivering the opinion.
This was an action of trover for slaves, tried at the September Term, in i860, of the Superior Court of Elbert county.
The plaintiffs relied upon a deed of gift from Daniel Thornton, dated 17th November, 1838.
Defendant, who claims under Reuben Thornton, relies [657]*657.First, upon a sheriff’s deed to Reuben Thornton for said slaves, -reciting that they were levied upon by virtue of an execution against Daniel Thornton, and others, duly advertised and sold to Reuben Thornton as the highest bidder, on the first Tuesday in February, A. D. 1841. The fi. fa. with proper entries of these proceedings, and the advertisement were also in evidence. Secondly, upon a bill of sale, with warranty of title from Daniel Thornton to Reuben Thorn■ton, dated 27th April, A. D., 1841. He deduces title to himself by the last will and testament of his father, the said Reuben Thornton. Such is the documentary title, showing that both parties claim under Daniel Thornton. There was considerable oral evidence to support or invalidate the ■one title or the other. The plaintiffs rely upon the seniority ■of their title. Defendant attacks it upon the ground that it was a voluntary conveyance — (not delivered at the time of its •execution; that there is no evidence when it was delivered, ■ or that it was ever in the possession of either of the grantees, •or of any other person than the grantor at any time anterior to the sheriff’s sale, at which his testator purchased, tie in- . sists that he is entitled to hold the property, under the sheriff’s sale, against the plaintiffs, First, because their deed was void for want of delivery. Secondly, because if their deed was .actually delivered before the sheriff’s sale, he, being a subsequent purchaser for a valuable consideration, without notice • of the prior voluntary conveyance, should be preferred in law -to the volunteers.
There are sundry exceptions taken to the charge of the Court .as delivered, and to the refusal of the Court to give certain -charges as requested in writing by plaintiffs’ counsel. The -charge itself, is given in extenso, and the exceptions set forth • in the bill of exceptions.
1. The first error alleged, consists in the charge, that if the jury believed, from the evidence, that the sale was made 'by the sheriff, or by Daniel Thornton, to Reuben Thornton before the delivery of the deed of gift, by Daniel Thornton, ■ to the parties in interest, or one of them, or to some one else for them, then the plaintiffs can not recover; whether Reuben 'Thornton had notice of the deed of gift or hot; that it was -important to determine, in this case, whether the deed was delivered before or after the alleged sheriff’s sale, that if the voluntary deed was found in the possession of Sarah [658]*658Thornton (wife of Daniel Thornton), who took an interest under it, it is to be presumed that the deed was duly delivered, and in immediate execution of the purpose for which it was made, but that this presumption is not conclusive — may be rebutted — and that it was the province of the jury to say whether or not it had been rebutted, and generally to consider and determine, from the evidence, all the facts involved in this branch of the case.
Such is, in substance, the charge complained of, and we see no error in law contained in it. But it is said the Court assumed, in so charging the jury, that there was evidence before them of a character to rebut that presumption of law, when, in fact, there was none; and that this assumption, by the Court, misled the jury and deprived the plaintiff of the benefit of the legal presumption.
This exception is not well taken. The evidence discloses the fact, that at the time of the signing of the voluntary deed no one of the donees was present, and that it was not delivered to any person for them. This is the evidence one of the subscribing witnesses, and is unquestionably in rebuttal of the presumption that the deed was delivered in “immediate” execution of the purpose, etc.
It raises the contrary presumption, that the donor did not intend immediate delivery, otherwise he would have had one of the donees present to receive the deed, or have delivered it to some other person for them. Again, the facts that the levy, advertisement, and sale by the sheriff (being all official and public acts) had induced no notice of the prior voluntary conveyance at the time of the sale; that at the time of the sheriff’s sale, the voluntary deed had not been recorded; that there was no evidence of its having been in the possession of any of the donees, or out of the possession of the donor, until 1845 (four years after the sheriff’s sale) were all circumstances proper to be considered and weighed against the presumption of immediate delivery, or of delivery at any time anterior to the sale by the sheriff. Had the Court below failed to give the qualification complained of, injustice would have been done the defendant.
2. The second error complained of is, that the Court, in charging the jury, after calling their attention to “the presumption against the bona tides, of the purchase at sheriff’s-sale, arising from the warranty deed which Reuben Thornton [659]*659took from Daniel Thornton, to support the title by purchase at sheriff’s sale” — added, “but this presumption is not conclusive — lit may be rebutted, and it is for the jury to say whether it is rebutted in the evidence.”
It is said that the Court by this qualification, “perverted the evidence, misled the jury and encroached upon their province,” etc. We are wholly unable to see in this, any perversion, misleading, or encroachment on the part of the Court. Doubtless it was argued in that Court, as here, that the subsequent warranty, obtained by Reuben Thornton, was no evidence of mala ñdes. Courts should always, in charging juries, as to presumptions, be careful to inform them that they are not conclusive, that they may be rebutted, lest they should infer the contrary. A mind educated in the law would not require to be so guarded, but one not so educated, without the qualification, would very probably be misled by the proposition. The Court did not tell the jury that there was sufficient rebutting evidence, or any rebutting evidence; but simply that the presumption urged by plaintiff’s counsel, might be rebutted by evidence, and referred the question to them. There is no error in this.
3. The third assignment of error in the charge, is, that the Court said to the jury: “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 .claim or conveyance, to whom, or by whom, etc., is not notice to Reuben Thornton.” '
The law is here correctly stated. The proposition is a simple truism, and the objection to the annunciation of it, that it was calculated to make the impression on the minds of jurors, that Reuben Thornton had no other notice, is forced and illogical.
4.
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By the Court. —
Jenkins, J.,
delivering the opinion.
This was an action of trover for slaves, tried at the September Term, in i860, of the Superior Court of Elbert county.
The plaintiffs relied upon a deed of gift from Daniel Thornton, dated 17th November, 1838.
Defendant, who claims under Reuben Thornton, relies [657]*657.First, upon a sheriff’s deed to Reuben Thornton for said slaves, -reciting that they were levied upon by virtue of an execution against Daniel Thornton, and others, duly advertised and sold to Reuben Thornton as the highest bidder, on the first Tuesday in February, A. D. 1841. The fi. fa. with proper entries of these proceedings, and the advertisement were also in evidence. Secondly, upon a bill of sale, with warranty of title from Daniel Thornton to Reuben Thorn■ton, dated 27th April, A. D., 1841. He deduces title to himself by the last will and testament of his father, the said Reuben Thornton. Such is the documentary title, showing that both parties claim under Daniel Thornton. There was considerable oral evidence to support or invalidate the ■one title or the other. The plaintiffs rely upon the seniority ■of their title. Defendant attacks it upon the ground that it was a voluntary conveyance — (not delivered at the time of its •execution; that there is no evidence when it was delivered, ■ or that it was ever in the possession of either of the grantees, •or of any other person than the grantor at any time anterior to the sheriff’s sale, at which his testator purchased, tie in- . sists that he is entitled to hold the property, under the sheriff’s sale, against the plaintiffs, First, because their deed was void for want of delivery. Secondly, because if their deed was .actually delivered before the sheriff’s sale, he, being a subsequent purchaser for a valuable consideration, without notice • of the prior voluntary conveyance, should be preferred in law -to the volunteers.
There are sundry exceptions taken to the charge of the Court .as delivered, and to the refusal of the Court to give certain -charges as requested in writing by plaintiffs’ counsel. The -charge itself, is given in extenso, and the exceptions set forth • in the bill of exceptions.
1. The first error alleged, consists in the charge, that if the jury believed, from the evidence, that the sale was made 'by the sheriff, or by Daniel Thornton, to Reuben Thornton before the delivery of the deed of gift, by Daniel Thornton, ■ to the parties in interest, or one of them, or to some one else for them, then the plaintiffs can not recover; whether Reuben 'Thornton had notice of the deed of gift or hot; that it was -important to determine, in this case, whether the deed was delivered before or after the alleged sheriff’s sale, that if the voluntary deed was found in the possession of Sarah [658]*658Thornton (wife of Daniel Thornton), who took an interest under it, it is to be presumed that the deed was duly delivered, and in immediate execution of the purpose for which it was made, but that this presumption is not conclusive — may be rebutted — and that it was the province of the jury to say whether or not it had been rebutted, and generally to consider and determine, from the evidence, all the facts involved in this branch of the case.
Such is, in substance, the charge complained of, and we see no error in law contained in it. But it is said the Court assumed, in so charging the jury, that there was evidence before them of a character to rebut that presumption of law, when, in fact, there was none; and that this assumption, by the Court, misled the jury and deprived the plaintiff of the benefit of the legal presumption.
This exception is not well taken. The evidence discloses the fact, that at the time of the signing of the voluntary deed no one of the donees was present, and that it was not delivered to any person for them. This is the evidence one of the subscribing witnesses, and is unquestionably in rebuttal of the presumption that the deed was delivered in “immediate” execution of the purpose, etc.
It raises the contrary presumption, that the donor did not intend immediate delivery, otherwise he would have had one of the donees present to receive the deed, or have delivered it to some other person for them. Again, the facts that the levy, advertisement, and sale by the sheriff (being all official and public acts) had induced no notice of the prior voluntary conveyance at the time of the sale; that at the time of the sheriff’s sale, the voluntary deed had not been recorded; that there was no evidence of its having been in the possession of any of the donees, or out of the possession of the donor, until 1845 (four years after the sheriff’s sale) were all circumstances proper to be considered and weighed against the presumption of immediate delivery, or of delivery at any time anterior to the sale by the sheriff. Had the Court below failed to give the qualification complained of, injustice would have been done the defendant.
2. The second error complained of is, that the Court, in charging the jury, after calling their attention to “the presumption against the bona tides, of the purchase at sheriff’s-sale, arising from the warranty deed which Reuben Thornton [659]*659took from Daniel Thornton, to support the title by purchase at sheriff’s sale” — added, “but this presumption is not conclusive — lit may be rebutted, and it is for the jury to say whether it is rebutted in the evidence.”
It is said that the Court by this qualification, “perverted the evidence, misled the jury and encroached upon their province,” etc. We are wholly unable to see in this, any perversion, misleading, or encroachment on the part of the Court. Doubtless it was argued in that Court, as here, that the subsequent warranty, obtained by Reuben Thornton, was no evidence of mala ñdes. Courts should always, in charging juries, as to presumptions, be careful to inform them that they are not conclusive, that they may be rebutted, lest they should infer the contrary. A mind educated in the law would not require to be so guarded, but one not so educated, without the qualification, would very probably be misled by the proposition. The Court did not tell the jury that there was sufficient rebutting evidence, or any rebutting evidence; but simply that the presumption urged by plaintiff’s counsel, might be rebutted by evidence, and referred the question to them. There is no error in this.
3. The third assignment of error in the charge, is, that the Court said to the jury: “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 .claim or conveyance, to whom, or by whom, etc., is not notice to Reuben Thornton.” '
The law is here correctly stated. The proposition is a simple truism, and the objection to the annunciation of it, that it was calculated to make the impression on the minds of jurors, that Reuben Thornton had no other notice, is forced and illogical.
4. The fourth assignment of error is, that the Court charged the jury, “that if they believed that one of the witnesses was called on, by the parties, at the time of the transaction, to bear witness to it, or was deliberately consulted by them, such circumstances are to be considered by the jury, in favor of giving it special weight, but such circumstances are not conclusive, but may be overborne in the minds of the jury by others.” This is simply suggestive to the jury, that they may well consider, whether or not, the fact of a person being [660]*660specially called on by the parties to bear witness of what transpired between, or being specially consulted by them, was-calculated to impress more strongly on his mind, what did transpire, and whether or not his recollection of the facts was-more reliable than if he had been casually a witness. It is a general rule, very generally expressed, to aid them in-weighing evidence- not applied to any one witness — and not, therefore, calculated to create an improper bias. If the jury applied it to the testimony of any one witness, that' there was a case for the rule. If they did not, they were not. misled.
5. The next error assigned, is in the following- charge to-the jury: “When a party takes or claims property under a deed of gift, he or she is what the law calls a volunteer; that is to-say, they paid nothing for what they claim. Such a party-(that is to say a volunteer) must yield to a party who claims-under a younger, or subsequent conveyance for a valuable-consideration, without notice of the prior claim. If he had notice of the prior deed of gift, then the law does not require the volunteer to yield to him.”
This charge, as affirmatory of a general rule of law, applicable to the case at bar, might readily be sustained by numerous authorities, but it is sufficient to adduce four decided cases-which were binding upon the Court below, viz.: Fleming vs. Townsend, 6 Geo. Rep. 103. Fowler vs. Waldrip, 10 Geo. Rep. 350. Harper vs. Scott, 12 Geo. Rep. 125. Jordan vs. Pollock, 14 Geo. Rep. 145.
We now add another on the point:
Exception is made to the refusal of the Court to- give certain charges, asked for by the plaintiff’s counsel. These are not set forth in .the exceptions, but we have referred to them as elsewhere stated, and believing that they could not have-been given in consistency with other portions of the charge, which we have already reviewed and approved, and would probably have made on the minds of the jurors, the erroneous-impression, that it was incumbent on the defendant to adduce proof of fraud in the making of the voluntary conveyance, other than the presumptive evidence furnished by the subsequent sale, for a valuable consideration, to a bona fide purchaser, without notice of the prior voluntary conveyance. We - overrule this exception.
7. When the verdict was returned and read, plaintiffs’ counsel [661]*661asked that the jury be polled, and this was done. One of the jury answering that he could not say, whether he found for plaintiff or defendant, the Court déclined to receive the verdict, and remanded them to their room.
They came a second time into Court with the same verdict, and were again polled. Exception is taken to the manner in which the question was propounded to each juror, viz.: “Do you find for the plaintiffs or the defendant?” The better form of question would be (following the reading of the verdict), “What say you, Mr. Juror, is that, or is it not, your verdict ?” But as there is no complaint in this case, which does not go to the whole verdict, we think the question, as put, equivalent, and therefore overrule the exception.
8. But it is further excepted that the motion for a new trial should have been sustained, and the verdict set aside, on the ground that the answers made on the polling of the jury, show that the verdict was not unanimous.
The greater number of the jury answered simply that they found for the defendant.
Some four or five added, either “that they were not satisfied,” or “that they were not fully satisfied,” or said, “that they were not satisfied, but with the lights before them, they found for the defendant.”
They all, however, did say that “they found for the defendant” which was the verdict read in the Court. Is it requisite that to sustain, a verdict, that juror should be wholly free from doubt, should be “fully satisfied zvith it?” If so, what shall become of cases turning upon a preponderance of evidence? Where the preponderance is not great, shall freedom from doubt be exacted? Are such cases never to be decided?
In this case the jury pursued the course proper in the absence of clear and satisfactory evidence; they left the parties as they found them; they conformed to the ancient maxim of the law, “portion est conditio defendentis.” The verdict was properly received and recorded.
9. It is objected that the Court below erred in admitting the evidence of Jeremiah S. Warren, detailing the conversation between Daniel Thornton, William D. Thornton and Reuben Thornton, relative to a prior voluntary conveyance of this property, and occurring immediately preceding the sheriff’s sale. Both parties claim under Daniel Thornton. [662]*662William D. Thornton was the father and natural guardian of the grantees (in the voluntary conveyance), then under age, and took himself a usufruct for a time in the property, and was therefore the person to whom such a conveyance, if ever perfected, might naturally be expected to be delivered. Reuben Thornton being urged to buy the property at the impending sheriff’s sale, having heard a rumor that Daniel Thornton had previously conveyed it to somebody, or there was an outstanding title, in order to satisfy himself, goes to the two persons, most likely to be informed, taking with him a witness, and asks information. Under all the circumstances, we think this evidence was properly admitted, if for no other purpose, to throw light upon the question of notice, vel non, to the second purchaser, of the prior voluntary conveyance.
io. The only remaining' exception is, that the Court erred in refusing a new trial, on the ground that the verdict was contrary to evidence, and to the weight of evidence. We can not say that we are dissatisfied with this verdict. It is certainly not “strongly and decidedly against the weight of evidence.” It concurs with a previous verdict of a special jury.
JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.