Russell v. Kearney

27 Ga. 96

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

Ought the Court below to have overruled the motion for a new trial ?

That is the question.

We think not. We think, that some of the grounds of the motion, were good — To the consideration of the grounds of it, I now proceed.

The first three of the grounds, may be passed without remark.

The fourth ground was, we think, good.

[1.] The general rule is, that the production of the original writing must be required, until an excuse has been given for its non-production. No excuse was given for the non-production of the original marriage settlement. The exemplification of the record of that settlement, was admitted to the jury, on the idea probably, that the admission, was sanctioned by the act of Congres, of May the 26th, 1790, or by that of March the 27th, 1804. But in our opinion, neither of those acts extend to the case of the exemplification of the record of á private writing, such as a deed. Such a writing, after being recorded, leaves the office of record and returns to the hands of the private owner. It is still as much an original as ever, and must, therefore, be better evidence of itself, than a copy of the record of it, can be, See Acts, Pr. Dig., 221.

[2] We cannot see any merit, in the fifth ground — The admission of the marriage settlement to the jury, though recurring at a late stage of the case, seems not to have prejudiced the plaintiff, at all. He did not say, that he was surprised at the introduction of the evidence, or, that he was at all less prepared to meet it, than he would have been, had it been introduced at an earlier stage of the case.

[3.] Nor is there any merit, in the sixth ground — That an estate is given to A., for life, or years, and, to B., in remainder does not make A., trustee of B., in respect toB’s remainder— The fact that B., happens to be the wife of A., can make no difference. But this ground was not seriously insisted on.

[4.] There is merit, we think, in the seventh ground— Mrs. Kearney had but an interest for her life, or widowhood, in the negro. She did not represent any other interest — she was not trustee, guardian, or agent, for those entitled to the remainder. What right then had she, to recover anything more than an equivalent for the interest belonging to herself? None that we can see, and with us, on this point, seem to bo the authorities. Mayne on Dam., 213, and cases died.

There is difficulty in understanding the eighth ground. We rather think, however, that this, at least, is to be gathered from it — that the Court told the jury, that the evidence proved the identity of the negro involved in the suit. Such a statement to the jury, was contrary to the Act of 1850. Cobb 462.

[5.] There is nothing, we think, in the ninth ground. The doctrine, that a voluntary conveyance is not good against a subsequent conveyance founded on a valuable consideration, has pláce only where both conveyances are made by the same person. This is too obviously true, to need support.

The tenth ground is the same as the seventh.

The eleventh ground is the same as the ninth.

As to the twelfth and last ground: it is true that the will required the executor to divide the negroes and give to each legatee, his share of them. But, in the first place, the executor, who was examined as a witness, says, that the legatee having the first estate in the negro in question, received the negro of him, “as the executor of Sally Thrift, and under the provisions and conditions of the will;” and if this be true, then,.the negro was received by the legatee after the executor had made a division such as the will required. But, secondly, if this was not enough — and it be true, that there was really no division, yet that is not a matter of which, Russell could complain, although it may be one of which the other legatees might. In such a case, the neglect of the executor, might make him liable to the other legatees for a devastavit. And, thirdly, even they cannot complain, if they have acquiesced in the executor’s course — supposing that illegal. And, it is to be presumed, that they have — for, as far as appears, they have not complained of the manner in which this negro was turned over by the executor to Richard Kearney, and that turning over happened some ten or eleven years ago.

Moreover, Russell, himself, claims under this very act of the executor. He bought from the legatee, to whom the executor delivered the negro; and that legatee received the negro for himself, and for the remaindermen after him. He would be estopped to say, that he did not so receive the negro. And Russell, being his assignee, must stand in his shoes — especially as he had notice of the remainder estate, when he purchased.

So nothing in this ground.

Judgment affirmed.