Wood v. Isom

68 Ga. 417

• Court: Supreme Court of Georgia
• Decided: February 15, 1882
• Status: Published

Opinion

Jackson, Chief Justice.

This bill was brought by the heirs at law of Wood against Isom and others. The object of the bill is to set aside certain deeds, some as fraudulent, and others as taken with notice of the fraud of the original grantee, or in the event there was no notice to affect the purchasers, then to make the grantors to them account for the value of the lands so held from them by innocent purchasers without notice. The gravamen of the bill rests on the allegation that Isom took undue advantage of alleged weakness of mind in Wood, springing from deep religious convictions of duty, and that Hulsey & Tigner, the counsel of Isom, confederated with him to defraud Wood by taking advantage of the same alleged imbecility. The answers denied every thing of the sort, and the main issue was fraud or no fraud in the original contract for the land between Wood and Isom and his counsel. Various other points arose out of issues affecting subsequent purchasers as to the bona fides of their several purchases, and how far they had notice, and how far what they knew affected each of them. The jury found a general verdict for defendants, the effect of which is to find no fraud in the original purchase, and to that question and rulings in respect to that issue we first address ourselves.

1, 2, 3, 4. Many grounds of error are laid in the motion for a new trial, all of which are found in the report of the case, but so far as they affect the main issue and relate to the charge of the court on that issue, they are the 2d, 3d, 4th, 5th, 6th and 7th.

In respect to them all we are unable to see error in them, and the charge as a whole on the points made in the grounds above mentioned, meets our approval. The 2d simply recognizes the right of one party to invoke an allegation of the other in the pleadings to his benefit, and dispense with other proof thereof than the averment of his adversary. The 3d lays down a correct rule of law on which Wood in his lifetime could have set aside the conveyance had he sued, in this, that if Isom or his counsel or assistants took advantage of the weakness of Wood and fraudulently used it to coerce his will, and cause him do what he would not have done otherwise, then Wood could have set the deed aside. The 4th and 5th relate to Isom’s title to the land, and are to the effect that though that title may have been imperfect, yet if Isom believed it good, he hada right to comptomise his claim with Wood'and get the conveyance to part of the land in dispute, “even though Wood had no other motive for making the conveyance than the belief that under the Scriptures a man ought to give up his property rather than go to law.” Surely it is not inequitable in a man holding an honest claim to property even to ask his adversary, rather than go to law, to settle in accordance with the word of God, and to invoke to his aid the faith and piety of his adversary to bring, about the settlement, provided he use no deceitful means and artful practices, or false and fraudulent representations or concealments. And the court fully guards the above, proviso in the charge excepted to in the 6th ground, which is undoubtedly law, and good law, and as fair and favorable to complainants as equity will go. The 7th simply lays down the rule, that while it is the duty of the agent to communicate to and keep the principal informed, the principal is not bound to tell his agent every thing about his business, and applies the rule to this case by saying that Isom was under no obligation to tell Hulsey & Tigner any thing further about his business than he chose to do.

5. The 14th ground relates to the competency of Hulsey & Tigner to testify,.as Wood was dead. Their competency turns on the particular facts to which they were called and the circumstances under which their testimony was elicited. As set out in the ground, the objection is not clear. It is thus stated there: “To testify over the objection of complainants’ counsel that Elias Wood said in their office, at the time the deed was made from him to Isom, that he had always intended to give up the land when the true owner came for it,” etc. It must be considered in connection with the circumstances under which the tes. timony was admitted.

The presiding judge thus details them : “ The court certifies that the witnesses, Hulsey and Tigner, were allowed, after objection made, to testify to nothing transpiring between them and the deceased, save in rebuttal of the testimony of living witnesses, who had testified for complainants to the same, or to parts of the conversations or dealings. This was the distinct ruling of the court, elaborately explained, the court referring to the physician’s case, Georgia Reports, and the Springfield case; and if any thing further was testified by these witnesses, or allowed to stand as their evidence, it was because counsel did not point it out or object to it.”

With this explanation of the presiding judge, made in regard to the correctness of the grounds of the motion, and, therefore, controlling, there is clearly no error on this ground.

.What the judge says and certifies, this court must regard as the truth of the case. Otherwise we should beat sea in all cases where recollection of what transpired varies ; nor can we look at the notes of a stenographer to vary the statement of the judge, even if they did so. The brief of the testimony alone, as taken down by the stenographer, is what governs'; and even that must be certified by the judge; but the current of what takes place in the way of objections to testimony or motions to rule it out, is no part of the testimony itself, and must be looked for alone in the certificate of the judge.

6, 7. On this first and main issue, the case, we think, was fairly and fully submitted in the judge’s charge. He had the right to recall and recharge the jury, if he thought the ends of justice demanded it, and to repeat in their hearing the oath they had taken in respect to the trial of the cause. The jury have passed on all the facts and rendered their verdict, and after a careful examination of this voluminous record, we see no error of law on that issue, and . nothing to induce the belief that other than an honest verdict was rendered. It is rather matter of regret than of complaint that there are not more men of the simple faith of the ancestor of complainants, who preferred to yield something of right rather than violate what he believed to be the word of God, and who settled quickly with his adversary whilst in the way with him, rather than go to law with his brother, especially as in good conscience he doubted the complete justice of his own title. He has gone to an inheritance compared with which earthly lands are nothingness and vanity, and has left his children a legacy richer, than money — the legacy of the good name of an humble, single-eyed, undoubting servant and follower of Christ.

It is unnecessary to consider the issues - in regard to subsequent purchasers.

Judgment affirmed,