Keaton v. McGwier

24 Ga. 217

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

Benning, J.

By the Court. delivering the opinion.

Was the testimony of Mrs. Jeffries admissible ? The Court below held that it was not.

The testimony of Mr. Jeffries, her husband, had been read by the complainant; and the only effect the testimony of Mrs. Jeffries, offered by the defendant, could have had, would have been, to discredit Mr. Jeffries.

[1.] This being so, the testimony of Mrs. Jeffries, was, according to Rex vs. Cloviger, (2 T. R. 263 ;) and Stein vs. Bowman et al. (13 Pet. 318,) not admissible. This Court will follow these cases,.and affirm the judgment of the Court below; but I must say, that it will do this, so far as I am concerned, with extreme reluctance and dissatisfaction. See Rex vs. Bathwick, (2 B. & Ad. 630, 647 ;) Rex vs. All Saints, (6 M. & S. 194;) 1 Green. Ev. § 342, § 254, and cases cited. I am, still open to argument on the point.

The Court told the jury, "that the allegations of the bill, not denied by the answer, were to be taken as true.”

In this, the Court, we think, was wrong, — even if there had been no answer at all, and the bill had been taken as confessed, the plaintiff would not have had the right to use the bill as’ evidence, until he had filed his own affidavit " of what, he” might “know or believe, the defendant could, or ought to answer.” 1 Eq. Rule, 2 Kel. 481. It cannot be, that the defendant injures his condition in this respect, by putting in an answer, and one so full, that it is not excepted to.

The Judiciary Act of 1799, seems to contemplate, that “ the facts in the” “ bill,” have to be “ taken pro confes so,” before they can be used as evidence, in obtaining a decree. Pr. Dig. 447.

I do not know of any English authority, that goes further than this, that if a defendant answers, that he believes a statement in the bill to be true, the Court will treat the statement as true. And there is other authority saying, that even this is going too far. Potter vs. Potter, 3 Atk, 719; Hill vs. Binney, 6 Ves. 738 ; Hood vs. Pymm, 4 Sim. 101. In this last case, the bill alleged a will; the answer was silent as to this allegation;' at the hearing, no proof of the will rvas made; the Court, for the want oí this proof, dismissed the bill.

“A mere statement, however, in an answer, that a defendant has been informed, that a fact is as stated, without an answer as to his belief concerning it, will not be such an admission as can be read as evidence of the fact.” 2 Danl. Ch. Pr. 402.

It seems that there are some American cases that recognize a different rule. What authority they have for doing so, I am not aware of. 3 Oreen Ev. § 276, and cases cited.

[2.] We think, that this charge was erroneous.

Charges given on the requests of Keaton’s counsel.

It is not perfectly clear, what the Court meant, by the qualification it gave to the first of these requests. We think the whole charge would have been better, if it had been something to this effect; that a receipt in full given by even a cestui qu’e trust, to his trustee, is prima facie evidence of a settlement between them, and throws on the cestui que trust, the burden of showing the receipt to have been obtained by fraud, by undue influence, (a thing easily growing out of such a relation as that of trustee and cestui que trusty or to have been obtained in some other improper way ; but that, when the case is one brought by a cestui que trust against a trustee, less evidence is needed to show the receipt to have been thus obtained, than is needed, when the case is one between persons not occupying toward each other, such a relation.

If a receipt in full is not sufficient to cast the onus, it is a thing not Avorth taking; for that is the least effect it can have. And to say that a receipt in full, Avhen given by a cestui que trust to his trustee, is to have no effect, is to say that the former is not competent to give to the latter such a receipt.

The qualification given to the second of these requests, Avas, no doubt, right, if the facts Avere such as to authorize it.

The Counsel for McGAvier insist, that certain parts of the ansAver, by implication, admit the trust as alleged in the bill; especially the part of the ansAver in which Keaton says, to her, that if “ he took the notes on condition that he Avould manage them for her, it would not change their relations,” &c. This the counsel for Keaton, deny. The issue is one, that may be settled by an amendment to the ansAver, stating more fully what the defendant meant by these expressions.

I doubt, myself, whether the expressions, as they stand, are susceptible of the construction put upon them, by Mc-Gwier’s counsel. If the evidence of Jeffries is true, the talk between Keaton and Mrs. Greenwood, about these notes, Avas intended by secret preconcert, for a very different purpose.

The qualification to the third of these requests, was, Ave think, erroneous.

It is, generally, true, that if the trustee disavoAvs- the trust, and such disavowal is known to the cestui que trust, the statute of limitations begins to run in favor of the trustee. This principle applies, not only Avhere there has been a “full and fair settlement” ; but even Avhere, there has been no settlement at all. It must apply, then, where there has been some settlement, even one not “ full and fair.”

[3.] An exception to the rule, is, where the cestui que trust labors under an undue influence proceeding from the trustee. A qualification of the request, to the folloAving effect, would therefore, have been proper, viz.: That if Keaton, at the time of such disavowal, had over Mrs. Greenwood, such an undue influence, that it operated to deter or prevent her, from asserting her rights against him, by suit, then the statute did not begin to run against her, until the cessation of that influence. Percel vs. McNamara, 14 Ves, 91; 9 Ves. 292; Lady Ormand vs. Hutchinson, 13 Ves. 47; Wood vs. Downs, 18 Ves. 120 ; Taylor and others vs. Obee, 3 Price, 83.

Something further on this point hereafter.

The fourth of these requests, was, “that complainant by her bill, having repudiated the deed executed by defendant to complainant in 1839, and alleged in her bill, that said deed was made for a purpose foreign to the alleged trust; she is concluded by her pleadings from relying on said deed, as a continuation of said alleged trust.” This request the Court refused.

There are allegations in the bill, which amount to this,— that the deed was made by Keaton to Mrs. Greenwood, exclusively to serve his own purpose, viz: to save the land contained in the deed, from the crim. con. suit of her husband against him, Keaton; and that she never accepted, or claimed, the land as her own.

These allegations are denied by the answer. They are not- proved by any witness. A different thing from what they import, is proved by a witness, Jeffries. He proves, that “Keaton said to Mrs. Greenwood, that her husband had sued him, and he feared would ruin him, and he was anxious to secure her, in case he was ruined, and that he would turn over to her these lands, mentioned in the deed.” This seems to be as much as to say, that the lands were turned over to Mrs. Greenwood, by Keaton, not to save them from the crim. con. suit, as she said they were; nor, to pay her, what he owed her, as he said they were; but, to secure her in what he owed her; she pleads one thing; he pleads another thing; the witness proves a third thing. This third thing is such, that it might be evidence of a continuation of the trust, if th ere was a trust.

Now, the pleadings being such as they were, could she avail herself of this proof, and make this third thing, though out of the record, a part of her case ?

[4.] “It is not only necessary that the substance of the case made by each party, should be proved, but it must be substantially the same case as that which he has stated upon the record; for the Court will not allow a party to be taken by surprise by a case proved on the other side, different from that set up by him in the pleadings.” 2 Dan. Ch. Pr. 419.

This position is, no doubt true; it is well supported by authorities. See Lindsay vs. Lynch, 2 Sch. & Lef. 1, and the other cases cited by Daniel.

Even if this third thing appeared in the answer, it would be doubtful whether the complainant could avail himself of it, without having first amended his bill by adopting the thing, as a part of his case. 2 Dan’l Ch. Pr. 419, 420; 1 do. 513 ; Stor. Eq. Pl. §§ 264, 394 n. 1; 1 Russ. 359; Mil. Eq. 39.

We think, then, that, as the bill stood, this fourth request was a proper one; and, therefore that the Court, in rejecting it, erred.

The bill, however, is amendable; and the complainant may adopt this third thing as a part of his case, if he chooses' to do so.

We think, that the Court should have given in charge, the fifth of these requests. The proposition contained in it seems to me, to be self-evident.

It is not meant to be said, that the deed may not be used as evidence, on the question of fraud, or that of undue influence, in what took place at the time when the deed was made.

The sixth of these requests required, as we think, modification — a modification which would have made . it, substantially as follows ; that if Mrs. Greenwood received from Keaton, the proceeds of the sale of lot No. 142, sold to Tarver in 1844, and subsequently to that time, dealt with the other lands as her own; these acts, if they were done freely, and not in consequence of an undue influence proceeding from Keaton, were acts in recognition, and ratification, of the settlement made in 1839; and, therefore, were acts which cast upon her, the burden of showing something to annul this effect of theirs; as, that they were done by her in ignorance of her rights, or through some mistake ; or by the fraud of Keaton.

Whether there was undue influence, ignorance, mistake, fraud, or any thing else, to neutralize these acts, were questions for the jury. But the acts, if left without neutralization, were such, that they amounted to a recognition and ratification of the receipt of 1839, as a settlement, by Mrs. Greenwood. This I think, must be clear. The pleadings-being as they are, how else are acts treating the land as her own to be accounted for ? If the bill had said, (in accordance with Jeffries’ testimony,) that the object of the deed of 1839, was, to secure Mrs. Greenwood, the case might be different.

Charges given on the requests of McGtoier’s counsel.

The propositions contained in the first and second of these requests, seem to us, to be true. These propositions were not denied before us by Keaton’s counsel.

In connection with these propositions, (as it seems,) the-Court told the jury, “ that in settlements between trustee and cestui que trust, which are attacked, or impeached, for fraud, or, not being a bona fide settlement, the weight is upon the trustee, to show the fairness of the settlement.”

We understand the Court to mean by, “ attached or impeached,” attacked or impeached by pleading — by mere allegations in the bill — not attacked or impeached, by proof See charge preceding any request. And taking this to be the meaning of the Court, we think, that the Court erred in this charge.

To say, that a receipt in full, given by the cestui que trust to the trustee, does not avail even to cast on the cestui que trust the burden of showing, that he did not receive all that he was entitled to, is to say, that such a receipt between such parties is worthless, is to encourage trustees to hold back the trust fund, until it is forced out of them, by suit. (Supra.)

[5.] We think, that a receipt in full, given by a cestui que trust to his trustee, is prima facie evidence of a settlement in full between them; and, consequently, that such a receipt casts upon the eestui que trust, the burden of making some proof, that there was not a settlement in full between them.

Of course this must be taken, as referring to the case in which the cestui que trust acts freely and not under an undue influence of any sort, proceeding from the trustee.

The third of the complainant’s requests was, as we think, not authorized by the pleadings. There is no statement in the bill, or in the answer, to the effect — “ that the settlement as contained in the deed, was not a bona fide settlement, but was nevertheless intended by Keaton, and not, by Mrs. Greenwood, to represent the original trust fund.” See above point, &c.

The fourth of these requests, when confined to the case made by the bill, was not amiss. That case was, that Mrs. Greenwood had entrusted $8,000 to Keaton, to be managed by him for her, and, sometime afterwards, had taken from him a deed conveying to her some of his lands, not in payment of, or security for this sum, but to save the land from a crim. con. suit of her husband against him. Here was a trust, and one with which the deed had np connection. The receipt, (or rather certificate, perhaps,) was as follows:

“Georgia, Baker County: This is to certify, that the within numbers in this deed that is marked out, has been sold by B. O. Keaton for me, and the proceeds turned over to me, by him, the said B. O. Keaton, this the 2d day of November, 1844. E. M. M. GREENWOOD.

Test: James Jewries.”

The date of the deed was the 12th of September, 1839. There does not seem to be anything in such a receipt, to cause the receipt itself, to end the trust, however much there may be in it, tending to show, that a thing other than the receipt, had already ended the trust, namely, — the deed.

The case made by the testimony of Jeffries, was different. According to that, the deed was made, to secure the payment of the trust funds to Mrs. Greenwood. The receipt shows, that Mrs. Greenwood got the money arising from the sale of a part of the lands contained in the deed. To the extent to which this money went — the trust was extinguished. According to this case, then, we may say, that the receipt partially ended the trust.

The fifth of these requests was erroneous, whether we take the case made by the bill, or the case made by the answer.

According to the bill, Keaton, (as well as Mrs. Greenwood,) intended the deed only as a means of saving his land from the crim. con. suit. According to the bill, then, it could not be true, that he “intended it, only as a security for the trust fund.”

According to the answer, the deed, together with a negro girl, and a gray mare, was given by Keaton to Mrs. Greenwood, and was accepted from him, by her, as “ a full, fair, complete, final, and bona fide settlement of all monied transactions, debts of whatever kind, or nature; and a surrender of all fiduciary relations of whatever character or name, before that time existing; and that it was so understood by the complainant and defendant.”

It is true that, McGwier’s counsel say, that a part of Keaton’s answer admits, by implication, that there was originally a trust; but I am confident, that it cannot be said, that this, or any other part, of the answer, admits by implication, that a trust continued to exist after the malting of the deed. This part of the answer has been referred to above.

According to the answer, then, it, equally, is not true, that Keaton “intended.” the deed “ only as a security for tile trust fund.” And even if there was, in the answer, but not in the bill, a statement to the effect, that Keaton intended the deed only as a security for the trust fund, it would be extremely doubtful, whether the complainant could avail himself of the statement. See point 4.

To make such a request as this proper, it will be necessary to amend the bill, by stating, that Keaton “intended” the deed “only as a security for the trust fund.” See above point 4.

[6.] The sixth of these requests went, we think, too far. Statutes of limitation do obtain in a Court of Equity; and, to the extent to which they so obtain, a Court of Equity, has no discretion to dispense with them, but is bound by them. True, it is said, that a Court of Equity “ acts by analogy,” to these statutes, (l Stor. Eq. Jur. § 64 a.) But this must mean, that a Court of Equity is bound so to act, whenever a proper case arises.

In a Court of Equity, however, these statutes are not allowed to extend to every case, to which they extend in a Court of Law. In a Court of Equity, they are not allowed to extend to cases of fraud whilst the fraud remains undiscovered; or, to cases in which, the injured party lives under an influence proceeding from the other party, which is so great as to be “ undue.” I do not know of any rule which defines, what is the amount of this influence, that it takes to make the influence undue. I suppose, however, that we may safely say this much, that if the amount is so great as to make the injured party rather forego exacting his rights, than, by exacting them, run the risk of displeasing the injuring party, the amount is undue. But a proposition of this sort is, if true, so difficult of application, that it can hardly be of much practical value.

The Court, we think, should not have granted this request in its full extent.

The seventh of these requests was too absolute.

Suppose il true, that there was a trust, and that Keaton still held “a portion of the trust fund,” yet if it was also-true, that he had held this portion for as much as four years next before the suit, adversely to Mrs. Greenwood, and had done so to her knowledge ; that for the same period, his undue influence over her, (if he ever had any,) had ceased j that for the same period, the fraud, if any, by which he had obtained the fund, or managed to keep it, had been known to her, — then, still, the suit would be barred by the statute of limitations.

These qualifications should have been added to the charge, as we think.

As to the eighth of these requests.

The “receipt on the back of the deed,” is “pleaded,” without restriction as to the use to be made of it. The party pleading it, Keaton, may, therefore, put it to any use to which it may be adapted. Indeed the bill does not ask for any “ investigation concerning the sales of the lands,” contained in the deed. How then could it be true, that anything could be pleaded only in bar to such an investigation? Therefore there is nothing, in the manner in which, ihc receipt is pleaded, to prevent it from being — “a point of time at which the statute of limitations” began to run in Keaton’s favor.

It is no doubt true, that if the case was such as the bill makes it out to be, the receipt did “ not constitute a point at which, the statute” began to run in Keaton’s favor. According to the bill, the receipt was a thing that could not relate to the trust, for according to the bill, the lands were conveyed by the deed to Mrs. Greenwood, for a purpose quite different from any connected with the trust; and the receipt is merely as to the proceeds of the sales of some of the lands conveyed by the deed.

This charge, then, we think needed modification. It is not supported by the reason assigned for it.

As to the ninth and last of these requests:

First, there is nothing in the bill, or in the answer, to au~ thorize the part of this request, in these words, — “ if they believed the deed to the lands was made merely to secure the trust fund.”

Secondly: The rest of the charge was too absolute. It might properly have been to this effect — that if the settlement was to deceive the public, and thereby save Keaton’s lands from the crim. con. suit — was in fact not a settlement, then it was a thing that could not affect the operation of the statute of limitations, on the trust as stated by the bill 3 that even if the settlement was intended as. a settlement, yet if it was procured by fraud, or by undue influence, in Keaton, the statute did not begin to run until the discovery of the fraud, or the cessation of the influence.

So much for the charges of the Court.

There was a motion for a new trial. The exceptions already considered, made a part of the grounds taken in that motion. Of the others of those grounds, all but two were abandoned. Of these two, one was, that the verdict was contrary to equity; the other, that the verdict was contrary to the evidence. The two may both be resolved into the last. And as to the last, we deem it inexpedient to express a» opinion.

New trial granted.