Cain v. Busby

By the Court. Lyon, J., delivering the opinion. The testimony in this case is very conflicting and unsatisfactory — so much so, that it is impossible to tell, with any degree of confidence or certainty, where the true title is. To illustrate: Stokes, who is a witness for the plaintiffs in the suit, testifies, that Lydia Cain, under whose deed of gift the plaintiffs claim, was living in Macon county in 1834 or 1835, when he moved to that county. Defendant moved to that county some years after and lived with his mother. During all the time, however, before and after defendant moved to Macon, old Mrs. Cain had possession of the negroes. She had possession more than four years before the deed was made. Defendant was present at the making of the deed, and made no objection. This is all of the plaintiff’s title, and looks like a plain one. On the other hand, Frederick J. King, a brother-in-law of Cain’s, introduced by the plaintiffs, says, he had this negro woman Mary in right of his wife, and made a deed of her to the defendant, though he made it to satisfy old Mrs. Cain, his mother-in-law, and intended to make it to her, but when he signed it, said that it was to John R. Cain. The deed he did make to John R. Cain — at least the one that was put in evidence — was for his interest [720] in the estate of Nathaniel Cain, deceased, and no negro’s name is mentioned, nor any other property, and purports to be in consideration of $1,000 00. Mary King, the wife of Frederick, and sister of defendant, and Jane Lanier, another sister, both testify that Frederick King, by virtue of his marriage, became entitled to Mary and her three children from the estate of Nathaniel Cain. Now if this is true, the negroes did not belong to Lydia Cain, so as to enable her to convey them to the children of Benjamin Cain. But if they belonged to the defendant, why did he want to run them off, to keep White, the guardian, from getting possession of them? or why was he willing to buy the interests of the heirs in these negroes and give them $200 00 apiece for their interests ? And I will remark here, these admissions were not applicable to the plaintiffs, though used in that way. The heirs John R. Cain alluded to were the heirs of Lydia Cain or Nathaniel Cain, for he says, in immediate connexion with these admissions, that he had bought Snell’s interest, one of the heirs, the witness says, of Lydia Cain, but he was also of Nathaniel Cain. Now, a very pertinent inquiry arises here: How did Lydia Cain acquire title to these negroes, if she ever had one ? It strikes me that an answer to that question might end the doubt. Some of these witnesses, the children of old Mrs. Cain, ought to be able to explain the whole matter. They have not done so, but have left the matter in so much doubt, that it is difficult, if not impossible, to tell where the true title is. As it stands, it is a question exclusively for the jury to determine. 1. We think, under the facts of this case, the Court below, instead of charging the jury, “that if they believe, from the evidence, that Lydia Cain, for four years previous to 1842, held the property sued for adversely, claiming the same, and made the deed of that date to plaintiff, and defendant was present consenting to the same, and took a benefit therefrom, then the plaintiffs are entitled to recover,” should rather have charged, that Lydia Cain must have been in the possession of these negroes for four years previously to 1842, holding and claiming them adversely to John R. Cain, to entitle plaintiff’s to recover against defendant under a statutory title in her favor, but if she held possession of the negroes jointly with him during that period, such possession coud not create a statutory title in favor of, or against either. [721] 2. That if defendant was present when Lydia Cain made the deed of 1842 to plaintiff, and did not object thereto, it is a circumstance going to show that at that time he had no title to the property himself, but recognized the title as being in Lydia Cain. The evidence did not altogether authorize the charge as given. The evidence showed her to be in possession, but it also showed defendant to be equally in possession. The evidence did not show that either claimed adversely to the other, nor was there any evidence that the defendant assented to the making of the deed. It is true that he was about the house, and very probably knew of its execution, but he did not assent or object, as the evidence discloses, and in a ease of so much doubt as this, a very slight misdirection might make a very material difference in the finding. Neither should the Court have charged the jury, “ that the deed of 1845,” (alluding to the deed from Mrs. Cain to Snell), “conveyed no title from Lydia Cain,-if you believe she made the deed of 1842.” That deed purports to be for a valuable consideration, and if it was so in fact — of which the jury were to judge — it did convey a title, notwithstanding she had made the deed of 1842, which is a voluntary one; that is, conceding that the negroes belonged to Mrs. Cain; besides, that charge takes it for granted that the title was in Mrs. Cain, which the defendant denies. 3. The charge of the Court, “thatthe deeds of 1836 and 1845, the one reciting the other, must be construed together, to be one paper and one transaction, and must stand or fall together, and if the jury believe that the deeds were obtained by fraud, then they are void as to the plaintiffs,” was evidently a mistake. The Court must have alluded to the two deeds, one made by Mrs. Cain to Barnabas L. W. Snell, dated 21st February, 1845, and the one from Snell to defendant, dated 28th October, 1854, for the latter deed does recite the former, and goes very far to show that the first deed was a contrivance to get a title into John E. Cain for the negroes, but the deed of 1836 is from a different person, and has no connection with either of the others. Standing upon the record as the charge of the Court, it is error, and must be corrected. The Court ought to have given the charge requested by counsel for- defendant, and without qualification; that is, [722] “ that the silence of the defendant at the time of the execution of the voluntary conveyance to plaintiff, does not estop him from setting up his previous title.” The effect of the defendant’s silence at the making of that deed, as we have stated, was only a circumstance going to show that he had no title at the time, but recognized the title as being in Mrs. Cain; but still, if the negroes really belonged to him at the time, or did not in fact belong to Mrs. Cain, it is his right to show it; and if he does show it satisfactorily, he will be relieved from the effect of such implied admission. He is not estopped from denying either that she had the title, or that it was not in him. An estoppel in pais exists only when third persons have acted in the faith of such admissions, and changed their condition in consequence. If, for instance, third pei’sons had bought the negroes from the donees under that deed, on the faith of such admissions, then the defendant would be estopped from setting up his own title in opposition to that: Jones vs. Morgan, 13 Ga., 526. It was improper for the witness Stokes to state in his evidence, against the objection of defendant’s counsel, that Mrs. Cain, at the time of making the deed to the plaintiff in 1842, made other deeds of gift of all her property among her other children. If she did in fact make such deeds, the deeds themselves were better evidence of the fact, as well as of what they contained'. Judgment reversed.