Whitten v. Jenkins

Walker, J. The first question made in this case, is, whether the Court [304] erred in admitting the following testimony of John G. Raines, viz.: “And his intention was fully expressed to give her the girl for fier own use.” If this were the only evidence in the cause, on the subject, perhaps we might be disposed to reject it; but as the same fact was sufficiently established by other testimony, we are unwilling, for this, to send the case back. It may be well questioned, however, whether this is an expression of opinion, or the statement of a fact. [1.] The second complaint was the admission of Judge Thomas’ testimony, as to the action of the Court in two cases mentioned, the relation in which the parties sued, &c. The Judge certifies that this evidence was received “ for the sole purpose of charging Whitten' with notice of Mrs. Jenkins’ equitable title, and it was only so used on the trial.” For this purpose, we think the testimony clearly admissable. It was important for Mrs. Jenkins to prove notice to Whit-ten of her equitable title, and this evidence tended to show such notice, to Lewis at least, who was the agent of Whit-ten in purchasing the negro from the husband; and the •Court, therefore, did not err in admitting the testimony for this purpose. We do not say that this was the only purpose for which it was admissable in this case; but it is unnecessary to decide more than that it was properly admitted to charge Whitten with nptiee. [2.] The tlni'd allegation of error, is to the charge of the Court, in relation to Devereux giving the negro to Mrs. Jenkins, by words excluding the right of the husband, &e. The specific complaint, as we understand it, is to the use of the word “ alone ” in that charge, — that there is no evidence to sustain the charge. It is true, the word “ alone ” is not used by either of the witnesses, but there are other words used which are equivalent thereto. We think the charge, as given, contains the law applicable to the facts of the case, and there was evidence to sustain the whole of it; and, therefore, the Court was right, both in giving the charge, and also in refusing to charge that the words used by the witnesses [305] did not pass a separate estate. We think it clear, by the evidence' in this case, that the donor intended to create in Mrs. Jenkins a separate estate. He said to her, “I give you the negro girl Margianna, and you must keep her, and let nobody take her from you until I call for her; and after ninety-nine years, I will call for her, and you must give her up.” Again, “At the time Devereux gave the girl, he called upon John G. Raines and Witham Youngblood, in my presence, to take notice that he gave aunt Burehet Jenkins Margianna for ninety-nine years, and to nobody else.” We see no error in the charge of the Court, as set out in the fifth ground of error. There was no antagonism, in the case of Charles Jenkins vs. Lewis, between the titles of Mrs. Jenkins and her husband. A recovey in that case by her husband, was for her benefit. Here was an action to recover a negro, which was her separate property: she had no trustee. “ In that cas e, the husband will take the legal interest, but equity will treat him as a trustee for his wife.” Fears vs. Brooks, 12 Ga. R., 197, and cases cited. “ The legal interest ” was in the husband, and this, at law, must prevail; but surely the assertion of this “ legal interest,” against a mere wrong doer, can not be held to eonelude the wife from showing, in a Court of Equity, her equitable title. We think the case of Fears vs. Brooks, supra, an authority for the charge as given, in relation to “ carrying on a case on nominal title.” [3.] We think there was no error in the Judge charging that notice to Lewis was notice to Whitten. There is no question that Lewis was the agent of Whitten, in purchasing the negro. He negotiated the trade for Whitten ; and we are very much disposed to think there was sufficient evidence to charge Whitten with actual notice of the claim of Mrs. Jenkins ; but whether there is or not, there was no doubt about Lewis, his agent, having notice of her claim, at the time of purchase and for several years prior thereto; at least, from the time Charles Jenkins claimed the property, “ as trustee of his wife, Burehet Jenkins,” on the 30th of March, 1849. “ Notice of facts to an agent, is constructive notice thereof [306] to the pricipal himself, when it arises from, or is at the time connected with, the subject matter of his agency; for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal; and if he has not, still, the principal having entrusted the agent with the particular business, the other party has a right to deem his acts and knowledge obligatory upon the principal.” These are all the errors complained of, and we think none of them sufficient to entitle the party to a new trial. Judgment affirmed.