Freeman v. Bass

Walker, J. The first error alleged by Freeman is, the admission in evidence of the bill filed by him against Bass. The object of its introduction is not very apparent,- but, perhaps, as a part of the history of the whole transaction, it was not very objectionable. [1.] TIis second complaint is, that the Court charged “That credits upon the notes were not subject to be opened and reduced by reason that the payments may have been made in Confederate treasury notes.” The entries oí the credits upon the notes seem to have been made by Freeman with a full knowledge of what he was doing; no fraud was practiced upon him; we presume he was twenty-one years of age, and had a right to satisfy the note in whole, or in part, if he saw proper to do so, without receiving any thing. He could, if he had wished to do so, have surrendered up the note to Bass without any consideration, and if so he certainly was competent to contract to receive payment in any thing he and his debtor might agree upon. We think the Court correctly instructed the jury on this point. In this connection, it is proper to state that Bass had a right to complain of the admissibility of the evidence to prove that the dates of the credits were prima facie evidence that such payments were made in Confederate notes ; but the instructions on this point to the jury prevented this evidence from doing him any harm, — the jury having allowed the entire amount of the credits. [3.] One of the notes given for a portion of the purchase money of the plantation, negroes, etc., and of which the note here in controversy forms a part, was sued in the District Court of the United States at Savannah, and the defendant filed various pleas thereto. After the passage of the ordinance of secession and adoption of the Constitution of the Confederate- States,, the case was transferred to the District Court of the Confederate States. Defendapt appeared, — 365 — and both demurred and pleaded to the jurisdiction of the Court, on the ground that Freeman, as shown by the pleadings, was a citizen of Texas — one of the Confederate States — and under the4Confederate States Constitution, could not sue in that Court. The demurrer and plea were overruled, and defendant then filed, to that case, all the grounds of defence which he pleads to this action. The defendant, when the Court decided to sustain the action, submitted to its decision the determination of his various grounds of defence. Evidence was introduced, the issues passed upon, the judgment rendered, and defendant satisfied the judgment so recovered against him. The question here is, what effect shall be given to this judgment? The jurisdiction of a Court rendering a judgment is always open to inquiry. If a Court have jurisdiction of the person and subject matter, its judgments, until set aside, are conclusive. It may proceed irregularly — it may mistake the law — still, so long as it acts within its own jurisdiction, its judgments will be binding. Had the Court jurisdiction? The objection made to the jurisdiction is that, by an ordinance of. the convention of the people of Georgia, this ease, with all others of a similar character, was transferred to the District “ Co arts of the independent State of Georgia,” and that no provision was made for any transfer of such cases to the District Courts of the Confederate States. No point is made upon the failure of the Confederacy. I quote from the argument of our brother Hill: “ Did the Confederate Court have jurisdiction ? We say not. The fact that the Court assumed jurisdiction, and decided itself to have it, amounts to nothing, unless the Court, in fact, had it. The suit was properly pending in the Federal Court on the 19th day of January, 1861, and that Court, up to that time, had jurisdiction of the case. The Convention of that date, in Georgia, abolished that Court, and established in lieu thereof a State Federal Court, and removed the civil and criminal cases then pending in the Federal Court to the newly created State tribunal. How then did the Confederate Court at Savannah get jurisdiction — 366 — of this ease ? It is incumbent on the counsel for' the defendant in error to show the mode by which it was done. It was a Court of limited, not general, jurisdiction; and the onus probanda is on him who asserts the jurisdiction to show it. Let not the Court misunderstand us. "We claim no advantage in this regard by reason of the result of the Confederacy. The pleas, in this case, were filed in 1862, and we claim now what we should have claimed had the case been tried then. Counsel for plaintiff may claim jurisdiction by reason of the judicial Act of the Confederate Congress under the Constitution. It is true that that Act did provide, that where the States had failed to take cognizance of the cases pending in the Federal Courts, and provide for their trial in the State Courts, that, in such case, the Court established under that Act should take jurisdiction. The cases in Georgia were within the express exception of the Act; and the Act, as to that provision in such cases as had not acted, was unconstitutional.” I have made this long quotation because it clearly states the question before us, and will make what I wish to say the more easily understood. It is true, that, by an ordinance of the Convention of Georgia, passed on the 29th January, 1861, all causes, civil and criminal, then pending in the Circuit Courts of the United States in and for Georgia, were transferred to, and all cases in the said District Courts were continued in, the District Courts of the State of Georgia thereby established. — Journal of Convention, 1861, p. 385. By another ordinance of the same Convention, page 393, “The Constitution for the permanent federal government of the Confederate States,” was adopted and ratified. Row, while it is true that pi ovision was made for organizing a State District Court, yet, in point of fact, no such Court was ever created. The Governor, who was, by the ordinance, authorized to appoint a District Judge, supposing, doubtless, that a Court would shortly be organized by the Confederate States Congress to' take the place of the District Court of the United States, declined to appoint such Judge; and, as — 367 — a consequence, the Confederate States District Courts, according to the Act of Congress, Statutes at Large Confederate States, page 84, approved 16th March, 1861, had jurisdiction of tlie cases pending in the District Courts of the United States in Georgia, as well as in the other States of the Confederacy. Georgia had, in fact, made no disposition of any of the causes pending in the United States Courts for Georgia, and never did create any tribunal for their adjudication. Her action, in reference to the matter, was inchoate merely, and not complete: hence, the case was properly before the Confederate States Court for decision. This Court having jurisdiction of the case, then, it is not denied that its judgment is conclusive. It follows, then, that the Court below committed no error in admitting the transcript from the record of the District Court C. S. A., at Savannah. Nor do we see any error in rejecting the evidence showing the value of the services of counsel for Bass in that case. Indeed, this claim was predicated upon the idea that the record should be ruled out; and if the record was properly admitted, this evidence was rightfully repelled. [4.] During the progress of the trial, Bass proposed to prove by the witness, McElroy, certain stipulations not embraced in the written contract. This was objected to and the evidence repelled, on the ground, as we understand it, that parol evidence is inadmissible to engraft an additional stipulation upon a contract evidenced by .writing. In Logan et. al. vs. Bond, 13 Ga. R., 198, this Court says, “ the uniform decisions of this Court have been, that all oral negotiations between the parties to a written contract, which either preceded or accompanied the execution of the instrument, are to be regarded as merged in it, and that the writing, is to be treated as the exclusive medium of ascertaining the agreement to which the contractors bound themselves.” And in Wynn, Shannon & Co. vs. Cox, 5 Ga. R., 376, the Court uses this language: “ It is neither more nor less than an attempt — 368 — to add to a written instrument by parol evidence, a stipulation which it is insisted was entered into at the time, but which the parties did not see fit to have incorporated. ¥e are satisfied that this can not be done without infringing one of the soundest and most wholesome rules which Courts of justice have devised for the security of private property”— citing numerous authorities. And the opinion continues: “ These authorities establish, not only the general proposition that all previous negotiations resting in parol, but those also which were had at the time, are merged and extinguished by the writing; and that; allowing that the instrument does not contain the whole contract, oral proof is inadmissible to supply the deficency, unless it was occasioned by some fraud practiced by the vendor, or by some mistake or surprise oh his part.” These authorities seem to sustain the decision of the Court below. [5.] There is another ground, however, upon which, even if the Court erred in repelling the evidence at the time it was offered, would have required him to have withdrawn it, in a subsequent portion of the trial, had it been admitted; or, at any rate, would have required him to have instructed the j ury that it could not avail the defendant anything. The record of the proceedings of the Court at Savannah showed that the same defence had been passed upon, and was, therefore, res adjudicata. We think, therefore, the Court did right in rejecting MeElroy’s answer to the sixteenth interrogatory. We are unable to see any,error in the rejection of Judge Nisbet’s testimony, offered for the purpose of showing that Bass proposed to cancel the trade on certain terms. There was no allegation of fraud, or other ground, upon which Bass had a right to demand a rescission of the contract; and if not, we can consider the offer in no other light than that of a proposition to re-sell to Freeman, which he had a right to accept or reject as he should see proper. From what has already been said upon the subject of the admissibility and effect of the record of the judgmeut in the District Court at Savannah, and the rej ection of McElroy’s — 369 — roy’s testimony, it will be seen that we approve of the charge of the Court numbered 2. [6.] By the contract, Freeman conveyed the negroes to Bass: the title vested in him; but by the second paper, the bond for titles, and which was assented to by Bass, and, therefore, binding on him, Freeman reserved a lien upon the negroes for the payment of the purchase money. Counsel for Bass insists that the reservation of this “ lien ” by Freeman was a mortgage from Bass to him of the negroes, and by the statutes of Arkansas, where this contract was made, the mortgagee has the legal title. It is a sufficient reply that these papers do not make a mortgage according to the common law. The ancient way of making a mortgage was by a charter of feoffment, on condition that if the feoffor or his heirs paid the sum borrowed to the feoffee, or his heirs, at a day appointed, he should re-enter and re-possess; and sometimes the condition was contained in the charter of feoffment, and sometimes it was “ defeasanced” by a distinct instrument. 2 Thomas’ OoTte, Lit. 34-5, and note Z. Here there was no “ feoffment ” to Freeman; he simply reserved a “ lien ” upon the property which was conveyed to Bass with this incumbrance upon it; nothing more, nothing less. But we do not understand that by the laws of Arkansas a mortgage conveys a legal title to the mortgagee. Those laws, as we understand them, like ours, consider a mortgage as a mere security, an incumbrance created by the mortgagor upon the property, while the title remains in him. We think, then, the Court committed no error in holding that this “ lien ” was a mere security. In the cases of Hand vs. Armstrong (ante p. 232) and Bass vs. Ware, decided during the present term, we have given bur views upon the questions made by the charge of the Court numbered 4. In these cases we laid down the same doctrines as those contained in the charge under consideration, together with our reasons therefor, and deem it unnecessary to repeat them here. Judgment affirmed.