Greer v. Caldwell

By the Qourt. Starnes, J. delivering the opinion. [1.] Complaint is made by the plaintiff in error, that the Court refused to admit the notes in the bill of exception named, and annexed to the bill as exhibits ABX & D for the purpose (as is alleged) of showing the usury. We see nothing in the evidence proving a connection between the first set of notes, viz: the notes specified in schedules A and B (which are referred to as the notes first given by Templeton to Hougabook) and tho usurious transaction, of which complaint is made. The admitted amount of the debt from the former to the latter, viz: $247 00 being the same with the amount of the notes in exhibits B & X may have been relied upon as testimony to this effect: but this by itself is altogether — 212 — too slight a circumstance to constitute such evidence. By itself, this did not authorize even a presumption. Itmight have served to hang a suspicion upon (and thus encourage a dispute before the jury, calculated only to confuse them and embarrass justice) butjsuch suspicion would not have been sufficiently definite and distinct to take the shape of a presumption, on which a jury should act. In the absence of such testimony, the notes offered were not relevant, and it was proper not to admit them. The notes contained in exhibit D, given for the hire of the negro Ben, or Benjamin, were proper testimony, and should have been admitted. Together with the proof of hire which was offered; they would have served to show the amount paid on account of this transaction, and thus have aided in proof of the usury which was alleged. [2.] For a similar reason, in our opinion, the Court erred in rejecting proof of the hire which was paid by Templeton for this negr.o. Such testimony might have served to throw light upon the .character of the transaction, by showing that the principal and interest of the original debt had been paid by the hire; especially when taken in connection with the testimony of Benjamin Harris, who swears, that in the year 1845, Hougabook told him, ■“ That Templeton ow'ed him some two or three hundred dollars, and that he had a lien on Templeton’s negro”, and “ That the hire of the negro was in the place of interest”. He also testified, ■“ That there was no dispute between the parties as to any other negro”, and that “The negro remained in the possession of Templeton to the time of his death, and never at any time went into the possession of Hougabook”. [3.] Plaintiff in error also complains, that after he had closed his case, the Court refused to allow testimony going to show that both the subscribing witnesses to the bill of sale wore dead. We think the Court was right, for the reason (if for none other) that the testimony, so far as w.e can see, was neither relevant nor needed. [4.] It is also assigned as .error, that the Court dismissed the — 213 — bill on the ground that there was not sufficient evidence to authorize a submission of the same to the jury, and because such evidence was not positive. It was insisted in the argument before us, that there was no fraud in the execution of the bill of sale, inasmuch as the usury cannot be regarded as rendering the deed fraudulent, and that in the nature of the case, there could have been no mistake. It may be admitted as true, that the usury proven cannot be regarded as tainting the bill of sale with fraud; because the principal and lawful interest of the debt constituted a legal and sufficient consideration. Rut the usury may be fairly looked to as characterizing what was done at the time this deed was made, as showing that an illegal and unjust bargain was obtained by Hougabook; and this in connection with other circumstances, as we shall presently see, may serve to show fraud or mistake in the execution of the deed. Ry the answers of Harris, we find Hougabook in 1845, admitting in effect, that Templeton owed him two or three hundred dollars only; that he had a lien on Templeton’s negro, and that the hire of the negro was in the place of interest. If this testimony is to be received as credible, and it comes to us as entirely so, here is testimony strikingly inconsistent with the fact, that there had been an absolute sale of the negro by Temple-ton to Hougabook; testimony out of the mouth of Hougabook himself. John Strickland also testifies, that in 1849, some two or three years before Hougabook’s death, ho had an interview with him, and “ Understanding that Hougabook had a mortgage on Templeton’s negro”, asked him “ If he intended to close (foreclose) his mortgage on Templeton.” He replied “ No, if Templeton would pay him his principal and interest, he might keep the negro.” Here it will be observed, that the witness in simple and direct terms puts a question to Hougabook, in which he refers to Ms mortgage upon this negro, and asks if he means to foreclose. Hougabook does not disclaim having a mortgage, and insists that he has an absolute bill of sale, as it is entirely probable he would have done, if he had had such a deed right — 214 — fully; but on the contrary, by what he does say, he sanctions the idea that he had only a mortgage, or something of that kind, for he replies “ No, if he will pay me principal and interest, he may keep the negro.” He does not say, “ I will re-sell the negro to him,” in such event; but his words are, “he may heep the negro;” from which it may be fairly inferred, that he was recognizing the legal title, as still in Templeton. Now, if we take this testimony of Harris and Strickland, with the admitted fact of the usury, and the attendant circumstances of the hard and unconscionable bargain driven by Hougabook, we cannot hesitate to conclude, that there was not only some, but very strong evidence from which a jury might find that there was fraud or mistake in the execution of this instrument. That either tempted by cupidity, at the moment of its execution, Hougabook gave to the instrument which Templeton designed as a security, the character of an absolute deed; or what is more probable (and more charitable to the deceased) that from ignorance, the instrument was thus executed under the mistaken impression, that with a verbal agreement between them, Hougabook could hold it as a security. The latter of these conclusions seems strongly supported by the testimony of Harris and Strickland. If so, this is just such a case of mistake, growing out of misapprehension, or “Want of foresight of the parties” as equity will interfere to correct. (Hollingshead vs. McKenzie, 8 Ga. R. 457.) Non videntur qui errant consentiré is a rule of the Civil Law which has been adopted by our Courts of Equity; and acting upon it, they will relieve against the results of ignorance and error. Thus relieving, they will reform a written evidence of contract, if through misapprehension or mistake it should not express the intention of the parties; and parol testimony will be admitted to show such misapprehension or mistake. (Towers vs. Moor, 2 Ver. 98. Langley vs. Brown, 2 Atk. 208. The Marquis Townsend vs. Stangroom 6 Ves. Jr. 328. Gordon vs. Marquis of Hertford 2 Mad. 120. 2 Swans, 248. Wil — 215 — lan vs. Willan, 16 Ves. 82. Wiser vs. Blackley, 1 John Ch. 607. Inock vs. Stuyvesant, 2 Paige Ch. 84. Grillespie vs. Moon 2 John Ch. R. 585. 1 Sug. Vend. (6 Amer. ed.) 257, 271. 1 Story Eq. Jur. see. 156. 1 Greenl. Ev. 296. 4 Bibb. 451. 1 Dess. 155. Lindly vs. Sharp 7 Monro 252. Murphy vs. Trigg 1 Monro 72.) [5.] We think also, that the Court below was not entirely accurate in holding that the evidence offered to reform this deed should be positive, if he designed to use this term in its strictest sense. We are not surprised that that Court should have been slightly misled here; for the language used by some eminent Judges when considering questions of mistake, has been somewhat loose and indefinite, and sometimes eneourages the view taken in this charge. For example, in Burt vs. Barlow 3 Bro. Ch. R. 451, we find Lord Thurlow requiring in such a ease “ distinct evidence of the mistake.” “ Express evidence” is said, to be required for this purpose in some- cases, as in Henkle vs. Roy. Exch. Assurance, 1 Ves. Sen., 317. In Beaumont vs. Bramley 1 Turn. 50, 55, it was held that such proof must be “ strong, irrefragible.” On the other hand, that great man, Lord Hardwick held, that in such case' “ A reasonable presumption was sufficient.” Simpson vs. Vaughn 3 Ath. 33. The true and reasonable rule, we think, is that which will be found sanctioned by Chan. Kent, viz: that the proof in such a case must be clear, strong and satisfactory. Boyd vs. McLean 1 J. Ch, R. 590. Gillespie vs. Moon, 2 lb. 585. Slight suspicions ; vague presumptions; bare possibilities, will not do; but the evidence must be such, and so clear and strong, as to produce satisfactory conviction. This is all that is required, and this is enough to prevent such admission of parol evidence from producing insecurity in written titles. [6.] A few words should perhaps be added in relation to the Statute of Dec. 25th, 1837. It would seem, by the charge of the Court, to have been his opinion, that by the operation of this Statute, a bill of sale, absolute in its face, can be attacked — 216 — by parol testimony, on the ground of fraud alone. Such is not the view we take of this Statute. In our opinion, it was not intended to deprive our Courts of Chancery of their authority to reform written contracts on tho ground of mistake. Rut the object of the Statute was by express enactment to make plainly illegal the too common practice of allowing parol testimony to prove, that a deed, absolute in its terms, was really intended as a mortgage; and this without pretence of fraud or mistake.— In other words, the Statute is not restrictivo of the Law, as it previously stood, but only declaratory thereof. Lot the judgment bo reversed.