Gill v. Strozier

By the Court. Lyon, J., delivering the opinion. 1. The verdict is not contrary to and against the weight of the evidence, nor against the law. On the contrary, there is a sufficient evidence to suppórt it. The evidence of Mrs. Catherine Foster and Daniel Woolbright was, that Price, the intestate, after his intermarriage with Delphia or Elizabeth, the daughter of John Peteet, then in life but since deceased, brought home to the county of Lee, where he (Price) lived, from the county of Wilkes, where his father-in-law (Peteet) [693] lived, the two negro girls, Barbara and Milly, from whom the balance of the negroes in controversy are descended, and that he continued in possession of them from that time to his death, being several years, and during the time he claimed them as his own, hired them out and received and appropriated money, and otherwise controlled them as his own property. This was sufficient evidence to support the verdict. On the other hand, there is some testimony going to show jjhat the father-in-law (Peteet) only let them go into his possession as a loan, for the use of Mrs. Price, he retaining the right to take them back or make such other disposition of them as he thought proper, but this testimony is not sufficiently clear and satisfactory to overcome the presumption of ownership arising from the possession, use and claim of title by the plaintiff’s intestate Price; indeed, upon a careful examination, it will be found to be very unsatisfactory. Benjamin itamsey, one of the witnesses, testifies to too much. He says that Price told him, in his life time, that the two negro girls were his wife’s property, and not his, and that his father-in-law (Peteet) would not give the negroes to him, but gave them to his wife. I know of no rule that would create a separate estate in the wife by parol declaration, or that would allow it to be proven in that way. If that testimony is worth anything, in the absence of a conveyance of the negroes to the separate use of the wife, it is to establish the plaintiff’s title to the negroes; that is, that although Peteet might have intended differently, yet the title was in the husband. This evidence certainly does not establish a loan or title in Peteet at that time. The next and main witness is John M. Moore. He says that he “is fully of the opinion that the negroes were loaned to Elizabeth Price by her father,” but he says that he does not recollect that he was present when they were delivered; that he “was always under the impression that the negroes were loaned, as all the rest were loaned;” and again, “ that she (Mrs. Price) and all of Mr. Peteet’s children took their property in the form of a loan.” Now, there is nothing positive in this evidence. The witness testifies to Mr. Peteet’s habit in letting his [694] children have property as a loan, and not as a gift. Of this • particular transaction he knows nothing, except what he believed, and what he heard from Mr. Peteet’s policy toward his other children. The only other witness is Jonathan Davis, who says, in his answer to a cross interrogatory, that he saw John Wool-bright claiming and controlling the negroes as stated in his answer to the direct interrogatory, but by reference to that answer he says, “John Woolbright claimed the consol of the negroes, either as trustee or by power of attorney.” Taking the whole together it amounts to nothing at all, and the answer to the cross interrogatory standing by itself, as agreed upon in the brief of evidence, that is, that he “ saw John Woolbright claiming and controlling the negroes,” giving it all that is claimed for it, that is, that he was claiming and controlling for John Peteet, is not sufficient to overcome the presumption in favor of the plaintiff, for it only raises a presumption itself; it is not positive evidence of the title being in Peteet, besides there is no evidence that Price himself knew of and assented to this claim or the exercise of this control. Had the finding of the jury been for the defendant instead of the plaintiff we can not say that we would have disturbed it, but on this evidence the verdict is certainly not so strongly and decidedly against the weight of the evidence as to require, or even justify us in disturbing it. The third ground in the motion for new ferial, that is, that the finding for him was excessive, was abandoned. 2. We think the Court below properly rejected the testimony of the witness, Samuel G. Wyche, to prove the contents of the lost or destroyed paper or power of attorney, or rather the contents of the record thereof which had been destroyed by fire. This testimony was offered under the 2d section of the Act of 5th March, 1856, pamphlet, page 138, which is in the following words: “ Where any original deed, or other instrument in writing, is lost or destroyed, which has been recorded, and the record of such deed, or other instrument in writing, has been burned, [695] the contents of such record may be proved by the clerk who recorded the deed, or other instrument in writing, or of any clerk who had copied said record, or by any person who has read the same, and said testimony may be given in evidence to the jury in any case when it becomes necessary for the assertion of the rights of any of the parties.” This statute must- be understood as having reference only to that class of instruments in writing, such as deeds, bills of sale, etc., that are authorized and required by law to be recorded, and which, when recorded according to the requirement of law, are allowed to go in evidence to the jury without further or other proof of execution; at least under that statute the contents of only that class of instruments in writing, when recorded, are allowed to go to the jury as evidence without other proof of the execution of such paper. Had the record of this deed not been burned, a certified copy of the deed from the record could not have gone to the jury as evidence without proof of the execution of the original, notwithstanding the destruction of the original so recorded; because, the law does not require or authorize such a paper—a simple letter of attorney authorizing one to hold personal property and act as agent for another—to be recorded, and provide, that when recorded, it may be given in evidence without further proof of execution. This statute authorizes parol testimony, or the recollection of the witness of the contents, in case of the destruction of the record, to be substituted or to stand in place of the record itself, not to do more than this. If the paper recorded is not one authorized to be recorded, nor is recorded in the terms of the law, it is in neither case a record, and a copy of such paper found on the clerk’s books is entitled to no more credit or weight than one found on the books of a private person. 3. The testimony of the witnesses (Mrs. Peteet, Callaway and Lumsford and part of that of Moore) was properly withdrawn from the jury by the Court, as it consisted of the declaration of John Peteet, the former owner of the negroes, made after he had parted with their possession, and after [696] Price had acquired his title under him. Settle vs. Allison, 8 Ga., 207. The part of the witness Davis’ testimony excluded was still more objectionable, because it consisted of the declarations of John Woolbright, who never did have the possession of the negroes, nor, so far as we are informed, a right to their possession. Let the judgment be affirmed.