By the Court.
Nisbet, J.
delivering the opinion.
[1.] The proof of the statements made by Mrs. Morgan, relative to the property, was unquestionably admissible. They [520]*520were made in the presence of the defendant, and assented to, not tacitly, hut expressly, by him. They were, therefore, his admissions against his own title, during the time that he was in possession.
So, also, his admissions were provable. Whether his admissions of holding the property for the period of the Statute limitation term, as the property of the plaintiff and the other children of Charlotte Morgan, gives to the plaintiffs a title upon which they can recover, is a question of law to which I will again advert. Now, I mean to say, that Charles W. Morgan’s admissions against his title, made while in possession of the negroes, is legal evidence for the plaintiff suing for those no? groes. The objection founded on the. principle that an estate in remainder cannot be proven by parol, upon the exhibition of the documentary evidence, was waived, and I have no occasion to notice that any farther.
The slaves in controversy, are a woman, Binah and her issue, and Caty and her issue. The plaintiff’s claim to Binah, depends upon a title differently derived from the title which they set up to Caty. The case, therefore, is divisible into such questions as arise on the claim of the plaintiffs to Bi-nah and her children, and such as arise on their claim to Caty and her children. And first as to Binah. The plaintiffs read to the Jury, a deed from Mrs. Ann Gibbons to her daughter Charlotte, the wife of the defendant, Charles W. Morgan, and who had intermarried with him before the date of the deed, giving Binah and her issue to Charlotte, during her life, and to her (Charlotte’s) children at her death. It bears date on the 22d April, 1826, was proven and recorded two days after-wards, to wit, on the 24th April, 1826. They then proved that Charlotte Morgan died in January, 1840, leaving five children, of which the plaintiff, Mrs. Jones, is one — the possession of Binah and her increase in the defendant at the institution of the suit, their value, and the value of their hire. Also, that the defendant was in possession of the negroes since the year 1839.
[2.] Such was the plaintiff’s case as to Binah and her in[521]*521crease. The defendant below, opening his case, tendered in evidence an exemplification from the record books of the Superior Court of Laurens County, which purported to be the copy of a deed of gift from Ann Gibbons to her daughter, Charlotte Gibbons, of a negro girl named Binah, about eight years old, of very dark complexion, dated on the 6th day of June, 1820, signed Ann Gibbons, and witnessed by Joseph Saltenstall. To the copy deed was annexed the copy affidavit of'James Glass, to the effect that he was well acquainted with the handwriting of Joseph Saltenstall, and believes the above to be his handwriting, from having seen his subscription, which was sworn to and subscribed before a Justice of the Peace, on the -20th July, 1827. In this exemplification was the Clerk’s entry of its record on 20th July, 1827. Simultaneously with the presentation of this copy deed, the defendant proved by James Glass, that he saw the original, or what he then took to be the original, but never comparted them, in July, 1827, when the defendant brought it to him to prove, and it was reported that the witness was dead. It was also proven by the defendant himself, that the original was stolen or lost from his trunk. The Court admitted the deed in evidence, and the defendant then proceeded to prove by James Glass that he saw a negro girl, Binah, in 1819,-’20,-’21,-’22, in the possession of Ann Gibbons; that in 1820, the defendant was manned to Charlotte Gibbons, and that they lived with Mrs. Gibbons the year that they were married.- That in 1821, he (the Avitness) was occasionally at Charles Morgan’s, who then lived to himself, and upon some of his visits he saw the girl, Binah, but did not know whether she staid there or not, or whether she Ayas sent there or not, and that he never knew her to be in possession of anybody else from that time until now. This Ayas the defendant’s case, as regards Binah. The evidence I take from the bill of exceptions, the Reporter’s brief not containing the whole of it.
To the admissibility of the copy deed of gift, and also to the last detailed evidence of James Glass, the plaintiffs in the action below excepted. To the former it was objected:
[522]*5221st. That it was a testamentary paper and could not be read in evidence until proven and recorded before the Court of Ordinary.
2d. That it was not executed, there being no evidence that it was signed, sealed and delivered.
3d. That it was not an ancient document, because it was a copy paper.
4th. That it was a copy paper, and the copy was not shown to have been in existence thirty years.
The presiding Judge sustained the second objection,to wit: that the deed ivas not shown to have been signed, sealed and delivered, overruling the other objections. That is, he held that it was not a testamentary paper, but a deed, and that it was admissible in evidence as an ancient document.
[3.] We agree with his Honor, Judge Brown, that this is not a testamentary paper. No reason whatever is advanced to support this idea, but this, that the donor uses the word bequeath in the body of the instrument. She says, “ I, Ann Gibbons, do hereby give and bequeath to my daughter Charlotte Gibbons, and her heirs forever,' a certain negro girl named Binah, about eight years old, of very dark complexion; in testimony whereof, I have hereto set my hand, this 6th day of June, 1820.” It is true, that bequeath is a word common in wills. But its meaning is controlled here by other words, and by the legal effect of the instrument. There are no words used whatever, descriptive of the intention of the donor, that the instrument is to take effect at her death. On the contrary, it is clear that she intended to pass a present interest or property in Binah, and the legal effect of the paper is, to pass a present interest or property in her. 2 Kelly, 44, 49. 3 Kelly, 573, 4. 4 Ga. R. 75.
And, if viewed in the light of a modern instrument, requiring proof of its execution, we agree with the Court, that it is not sufficiently proven. There is no proof of its delivery. The probate upon which it is passed to record, is all the proof, whatever, that we have of its execution, and that is, proof of the handwriting of the subscribing witness, Saltenstall. If [523]*523the probate were full, and the deed recorded, on that proof, we should hold that sufficient evidence of execution, but it is not. The witness being dead, proof of his handwriting proves execution, so far as ho himself has witnessed it. He witnesses here, only the signing of the instrument. There is, really, no attesting clause. He only signs his name as a witness, and it is not stated that the instrument was delivered in his presence.
But we differ with his Honor in his decision, that the copy was admissible as an ancient document. We have no evidence of the existence of this instrument earlier than the date of the probate and record, which was in July, 1827. The copy before us is a copy of a deed then recorded, taken from the records of Laurens Superior Court.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court.
Nisbet, J.
delivering the opinion.
[1.] The proof of the statements made by Mrs. Morgan, relative to the property, was unquestionably admissible. They [520]*520were made in the presence of the defendant, and assented to, not tacitly, hut expressly, by him. They were, therefore, his admissions against his own title, during the time that he was in possession.
So, also, his admissions were provable. Whether his admissions of holding the property for the period of the Statute limitation term, as the property of the plaintiff and the other children of Charlotte Morgan, gives to the plaintiffs a title upon which they can recover, is a question of law to which I will again advert. Now, I mean to say, that Charles W. Morgan’s admissions against his title, made while in possession of the negroes, is legal evidence for the plaintiff suing for those no? groes. The objection founded on the. principle that an estate in remainder cannot be proven by parol, upon the exhibition of the documentary evidence, was waived, and I have no occasion to notice that any farther.
The slaves in controversy, are a woman, Binah and her issue, and Caty and her issue. The plaintiff’s claim to Binah, depends upon a title differently derived from the title which they set up to Caty. The case, therefore, is divisible into such questions as arise on the claim of the plaintiffs to Bi-nah and her children, and such as arise on their claim to Caty and her children. And first as to Binah. The plaintiffs read to the Jury, a deed from Mrs. Ann Gibbons to her daughter Charlotte, the wife of the defendant, Charles W. Morgan, and who had intermarried with him before the date of the deed, giving Binah and her issue to Charlotte, during her life, and to her (Charlotte’s) children at her death. It bears date on the 22d April, 1826, was proven and recorded two days after-wards, to wit, on the 24th April, 1826. They then proved that Charlotte Morgan died in January, 1840, leaving five children, of which the plaintiff, Mrs. Jones, is one — the possession of Binah and her increase in the defendant at the institution of the suit, their value, and the value of their hire. Also, that the defendant was in possession of the negroes since the year 1839.
[2.] Such was the plaintiff’s case as to Binah and her in[521]*521crease. The defendant below, opening his case, tendered in evidence an exemplification from the record books of the Superior Court of Laurens County, which purported to be the copy of a deed of gift from Ann Gibbons to her daughter, Charlotte Gibbons, of a negro girl named Binah, about eight years old, of very dark complexion, dated on the 6th day of June, 1820, signed Ann Gibbons, and witnessed by Joseph Saltenstall. To the copy deed was annexed the copy affidavit of'James Glass, to the effect that he was well acquainted with the handwriting of Joseph Saltenstall, and believes the above to be his handwriting, from having seen his subscription, which was sworn to and subscribed before a Justice of the Peace, on the -20th July, 1827. In this exemplification was the Clerk’s entry of its record on 20th July, 1827. Simultaneously with the presentation of this copy deed, the defendant proved by James Glass, that he saw the original, or what he then took to be the original, but never comparted them, in July, 1827, when the defendant brought it to him to prove, and it was reported that the witness was dead. It was also proven by the defendant himself, that the original was stolen or lost from his trunk. The Court admitted the deed in evidence, and the defendant then proceeded to prove by James Glass that he saw a negro girl, Binah, in 1819,-’20,-’21,-’22, in the possession of Ann Gibbons; that in 1820, the defendant was manned to Charlotte Gibbons, and that they lived with Mrs. Gibbons the year that they were married.- That in 1821, he (the Avitness) was occasionally at Charles Morgan’s, who then lived to himself, and upon some of his visits he saw the girl, Binah, but did not know whether she staid there or not, or whether she Ayas sent there or not, and that he never knew her to be in possession of anybody else from that time until now. This Ayas the defendant’s case, as regards Binah. The evidence I take from the bill of exceptions, the Reporter’s brief not containing the whole of it.
To the admissibility of the copy deed of gift, and also to the last detailed evidence of James Glass, the plaintiffs in the action below excepted. To the former it was objected:
[522]*5221st. That it was a testamentary paper and could not be read in evidence until proven and recorded before the Court of Ordinary.
2d. That it was not executed, there being no evidence that it was signed, sealed and delivered.
3d. That it was not an ancient document, because it was a copy paper.
4th. That it was a copy paper, and the copy was not shown to have been in existence thirty years.
The presiding Judge sustained the second objection,to wit: that the deed ivas not shown to have been signed, sealed and delivered, overruling the other objections. That is, he held that it was not a testamentary paper, but a deed, and that it was admissible in evidence as an ancient document.
[3.] We agree with his Honor, Judge Brown, that this is not a testamentary paper. No reason whatever is advanced to support this idea, but this, that the donor uses the word bequeath in the body of the instrument. She says, “ I, Ann Gibbons, do hereby give and bequeath to my daughter Charlotte Gibbons, and her heirs forever,' a certain negro girl named Binah, about eight years old, of very dark complexion; in testimony whereof, I have hereto set my hand, this 6th day of June, 1820.” It is true, that bequeath is a word common in wills. But its meaning is controlled here by other words, and by the legal effect of the instrument. There are no words used whatever, descriptive of the intention of the donor, that the instrument is to take effect at her death. On the contrary, it is clear that she intended to pass a present interest or property in Binah, and the legal effect of the paper is, to pass a present interest or property in her. 2 Kelly, 44, 49. 3 Kelly, 573, 4. 4 Ga. R. 75.
And, if viewed in the light of a modern instrument, requiring proof of its execution, we agree with the Court, that it is not sufficiently proven. There is no proof of its delivery. The probate upon which it is passed to record, is all the proof, whatever, that we have of its execution, and that is, proof of the handwriting of the subscribing witness, Saltenstall. If [523]*523the probate were full, and the deed recorded, on that proof, we should hold that sufficient evidence of execution, but it is not. The witness being dead, proof of his handwriting proves execution, so far as ho himself has witnessed it. He witnesses here, only the signing of the instrument. There is, really, no attesting clause. He only signs his name as a witness, and it is not stated that the instrument was delivered in his presence.
But we differ with his Honor in his decision, that the copy was admissible as an ancient document. We have no evidence of the existence of this instrument earlier than the date of the probate and record, which was in July, 1827. The copy before us is a copy of a deed then recorded, taken from the records of Laurens Superior Court. The original not being before the Court, and there being no evidence of possession under it, until after the date of the record; indeed, no evidence of possession in the grantee, until after the date of the junior deed under which the plaintiffs claim; the genuineness of the original is not sufficiently shown. It is true, that the old deed is proven to have been in the custody of Morgan in 1827, seven years after its date, but one year after the date of the plaintiffs’ deed. I do doubt whether the rule as to ancient documents, is applicable at all, unless the original paper is before the Court; but if it is, we are clear that the old deed is not, under the circumstances of this case, to be considered as a paper having any legal entity, until it is produced in 1827 for record. Without proof of delivery, or proof of possession of the property under it, before the date of the junior deed, we cannot see how it can be allowed to go in evidence under any rule, to defeat the junior deed. Without such proof, we are bound to consider it as a mere purpose unfulfilled, to convey, subject to revocation, and which was, in fact, revoked by a later, conveyance. If, as we arc constrained to rule, the old dee_d is to be considered as a genuine deed, only from the time when it first appears in 1827, then it was not a deed thirty years old, ,
The evidence of Glass, proving, the marriage of Morgan [524]*524with Charlotte Gibbons, in 1820, and that he saw the negro, Binah, at his house in 1821, &c. was admissible, as tending to show a parol gift’of Binah to Mrs. Morgan, perfected by delivery of possession. The amount of it, as tending to prove such a gift, is slight, exceedingly slight. Yet it was correctly. sent to the Jury, and the instructions of the Court as to the law regulating a parol gift were right.
[4.] So far as Caty and her issue are concerned, the plaintiff below proved that the defendant, Morgan, had held the possession of them for upwards of ten years after his wife’s death in 1840, and that upon divers occasions before and after her death, he admitted that they belonged to his wife and her children, and that he held them for them, and was ready to give them up when they wanted them. Whilst the defendant below relied upon a deed from Mrs. Gibbons, dated in July, 1826, which is in the following words, to wit:
“GEORGIA, Laurens County:
Know all men by these presents, that I, Ann Gibbons, (widow,) of the County and 'State aforesaid, for and in consideiation of the sum of twenty-five dollars, to me in hand paid by Louis Snider, Sr. and Henry Gibbons, of the County and State aforesaid, before the execution of these presents, the receipt whereof is hereby acknowledged, have bargained, sold and delivered, and do bj these presents bargain, sell and deliver unto the said Louis Snider and Henry Gibbons, the following property, to wit: one negro woman Caty, and her child, Prince, one negro, Isabella, and one negro girl, Louisa, one half of my silver ware, (to be equally divided between Mary Saltenstall and the above purchasers) one-half of my stock of cattle, and one.half my stock of hogs, one mare, (ball face) my lot of books of all descriptions and one pair of hand irons, to have the said bargained property on the following conditions ; ^nevertheless, that is to say, for the sole use and purpose of ^Charlotte Morgan, the wife of Charles Morgan, and to her heirs :and assigns, and to her and their own proper use and behoof. [525]*525And I, the said Ann Gibbons, the said bargained property shall and do warrant and defend forever, by these presents.
In witness whereof, I have hereto set my hand and affixed my seal, this 31st of July, one thousand eight hundred and twenty-six. ANN GIBBONS, [L.S.]
Signed, sealed and delivered in-presence of
Jonathan Parker, Jr.
Jonathan Parker, Sr.
Which deed was proven on the 7th of May, 1827, and recorded on the 23d June, 1827. The defendant’s counsel claim that this deed conveyed the property in the negroes, Caty and her offspring, to Charlotte Morgan, which vested in him at her death. To the contrary of this, the plaintiffs’ counsel insists that the deed conveyed a separate estate for life in Mrs. Morgan, with remainder in fee, to her children, and that they take under it as purchasers. The presiding Judge rightfully, as we think, adopted the former construction. The intention of Mrs. Gibbons was, to protect this property from the debts and alienation of Morgan — but she conveyed it, notwithstanding, to his wife. The intervention of trustees does not change the character of the estate. It is an out and out conveyance ‘ ‘ to the sole use and purpose of Charlotte Morgan, and to her heirs and assigns, and to her and their own proper use and behoof.” The legal title is deposited in trustees, but not for the purpose of protecting a limitation over to her heirs. If that was her intention, the rules of law applicable' to this deed, will not prevent its enforcement. The purpose of the trust was effected, and its legal existence ceased at her death. If it be conceded that she had a separate estate during the coverture, and really it'is unimportant to determine that, as there is no question made between the trustees and the creditors, or alienees of her husband; the property became absolute in her estate at her death, and her husband was entitled to it, having administered on her estate, by our Statute. Liptrot vs. Holmes, 1 Kelly, 381.
[5.] Again, the counsel for the plaintiffs say, that independ[526]*526ent of, indeed, in spite of this deed, and as overriding~the title of the defendant under it, they are entitled to recover upon a title to Caty and her offspring, upon their possession after the death of Charlotte Morgan, for a term of years greater than the statutory term of limitation. In other words, they claim the benefit of the rule, that a plaintiff in trover may recover upon adverse possession for the statutory term. Whatever may be the limitations upon that rule, or under what circumstances applicable, it is not necessary to inquire, for it suffices to say, that it has no application in this case. For this reason, they have not proved the possession. They say they have, because Morgan, the defendant, admitted that he had no title to the negroes, and that they belonged to his wife and her children, and that he was ready to give them up to them when the children wanted them. Upon this evidence they found the conclusions that Ms possession was their posses, sion, and as he had possession for a term longer than the limitation term, they had possession longer than the term of the Statute; and thus they have a statutory title paramount to all others. Now, what is the truth of the case, as we derive it from Morgan’s admissions ? It is not that he derived the possession from them, for he acquired it rightfully under the deed; not that he held it as their agent, trustee or factor, created either expressly or by implication, but his admissions go the length of proving Ms own possession, and that his possession was subordinate to their property in the negroes, and would be yielded to them when they should come forward and assert their right to the possession. He admits their property and their right to possession. That is all. This view of the matter is conclusive of the case, as it removes the foundation upon which the plaintiffs stand.
[6.] But again, there is no foundation for the alleged title by possession, because the admissions of the defendant, admitting them to go the extent claimed by the plaintiffs, aré not true, having been avoided by the production of the deed, which showed title in the defendant. The only answer to this proposition is, that the defendant is estopped by his admissions, and [527]*527could not set up title against them. To which it is a legal reply that he is not estopped. Yerbal admissions, as a general rule, are not conclusive against the party making them — they may be explained or avoided in evidence. They are conclusive only when in pais, as these were, when others have acted upon them, and by them have beeninduced to alter their condition. As to such other persons, in such cases, the declarant is concluded. 1 Greenleaf’s Ev. §204. Phil. & Am. on Evidence, 378. 1 Philips’ Ev. 7th edit. 226-7. 2 Ibid, note 192, p. 107.
If the plaintiff, Jones, who married the daughter of Morgan the defendant, was provento have married her on account of these statements of the defendant, that the negroes belonged to his children, I should hold the defendant concluded. lie would then have altered his condition in consequence of the admissions. Even if it were proven that the admissions wore made in Jones’ presence before marriage, I should be inclined to hold the defendant estopped, for it would be a reasonable presumption that he acted in marrying the daughter, upon them. Moreover, after making them in the pr esence of his future son-in-law, it would be a fraud upon his marital rights to set up a title in himself adverse to his admissions. Rut there is no evidence of these things. It does not appear in the record, that the plaintiff, Jones, had any knowledge, whatever, of the defendant’s admissions before his marriage. And upon the plaintiffs’ claim of title by possession, the Court charged the Jury in conformity with these views.
Let the judgment be reversed.