Cutliff v. Boyd

Jackson, Chief Justice. Cutliff sued Boyd and wife on two notes given by Holliday, on whose estate the defendants administered under his will, Holliday having been the first husband of Mrs. Boyd. The defendants pleaded non est faotum or its equivalent, invalidity of the notes on account of imbecility of body and mind of Holliday when apparently given, and thereby fraud and imposition on Holliday by Cutliff, his half brother, in procuring his signature to them, if given by him at all in that weak condition of body and mind, and a set-off against Cutliff in equity, because he owed Holliday more than the notes, by reason of having admin [311] istered on the estate of Mrs. Mabry, the mother of both, and being thus indebted to Holliday his distributive share of that estate. The latter plea, in regard to the set-off, was submitted to Col. Moses, as auditor, and he reported thereon. The plaintiff, Outliff, excepted to that report on fourteen grounds, the 1st, 2d, 3d, 4th, 5th, 6th, 12th and 13th of which were overruled by the court on legal grounds; the 10th was sustained on matter of law, it being the refusal of the auditor to hear Outliff’s version of an agreement between his brother, the deceased, and himself, which had been testified to by Mrs. Boyd, one of the defendants, in rebuttal of her testimony about that agreement; and the 7th, 8th, 9th. 11th and 14th, being issues of fact, were submitted to the jury. On the trial, the auditor was sustained by a verdict of the jury on all five exceptions, but in one verdict thus: “ We, the jury, sustain the auditor in regard to exceptions 7, 8, 9,11 and 14;1' and the jury also found for defendants one hundred and sixty-three dollars and eighty cents, in a separate general verdict. A motion was made for a new trial on various grounds therein set out; it was denied, and error is assigned on that denial. 1. On a very careful examination of the whole record and all the rulings of the court therein and charges to the jury, we are unable to detect but a single error, and that is the charge in the Hthi ground of the motion, that the auditor’s report is prima facie evidence of the truth, and the plaintiff must overcome it. Unquestionably, such is the general rule. Code, §3097. But where his report on the facts on trial of an exception thereto is made without hearing both sides thereon, if it be legal to hear both, then such report is not prima facie evidence of truth on that issue. In this case, the tenth ground of exception to his report was sustained and is not excepted to. The legal point was there decided, that Cutliff was a competent witness in rebuttal of Mrs. Boyd’s account of .what transpired between Holliday and Cutliff in respect to their mother’s estate, and in what manner it was to be [312] divided, and in respect to other matters touching that estate; but the auditor had held that he was not competent. So that the auditor had rejected competent testimony as to the true agreement between the brothers on an issue of vital importance in the case, and had heard only one side thereon, when he ought, in law, to have heard both. The dispute between them was, whether the brothers agreed, inasmuch as their mother’s will was lost, añd in consideration that neither would set it up or seek to do so, to divide the estate equally, each paying the notes he owed the mother, or whether those notes were not to be counted against either, and the estate was to be divided without regard to them. Mrs. Boyd swore one way, Mr. Cutliff another, on that issue before the'jury, where Cutliff was allowed to be heard; and yet, what Col. Moses reported on the same issue, where, nobody but Mrs. Boyd was heard upon that issue, the court charged the jury was the truth prima facie, thus giving one side, on such an issue, that decided advantage of the other. It may be that the verdict turned on that charge. It may be that the jury said, “well, here are two respectable people, both interested, one swore one way and the other differently, but the judge says that what the auditor says is the truth, unless overcome by Cutliff, and as Mrs. Boyd’s word is as good as his,-we will let the auditor’s report stand.” We are particular in saying “it may be” that this controlled the jury, because the verdict may have rested on the issue of the statute of limitations barring the collection of Holliday’s notes to his mother; in which event this issue would have been immaterial, or it may have rested on this very issue upon the letters which Cutliff wrote to Ray and Hammond, giving the preponderance to Mrs. Boyd as the correct version of the agreement, as well as other circumstances' looking that way.. Yet the charge was error; it was, upon an issue material in the case; that issue may have controlled the ver-' diet; the erroneous charge may have controlled the [313] finding on that issue, and therefore it is safer to remand the case for a new hearing. It wil] be seen from the record that the order itself, setting down these exceptions of fact for a hearing, follows §3138 of the Code, which declares that “ the report, when finally accepted, shall be admitted as evidence to the jury, with such instructions as to the effect to be given to it as the court shall give, under the circumstances of each case.” This provision was wisely inserted in the statute, doubtless to guard against just such a state of facts as this issue presents, that is, where the auditor ruled out competent evidence, and failed thus to hear all the facts. The error is the refusal to grant the new trial, not on the 6th ground of the motion,* which refers to the 7th exception, which is as to the limitation act of 1869, but on the 11th ground of the motion which refers to the 9th exception, which is on the issue of whether or no Holliday’s notes should be paid to Mrs. Mabry’s estate before fie got his half, or he should get half without counting them under the agreement. 2. Though the verdict is one, yet it specifies each exception by number, and is substantially in, compliance with law. 3. The verdict is sufficiently supported by the evidence to stand, but for the error above alluded to. 4. The charge on the subject of the statute of limitations, both the 6 years’ statute and that pf 1869, is not erroneous. 5. So on the subject of the effect of the agreement to set aside the will and divide the estate accordingly as the jury found the truth to be touching that agreement, the charge is right. The consideration is ample to support the mutual promise. 6. So in regard to the right of the administrator of Mrs. Mabry, Cutliff. to settle up that estate with Holliday without his consent or the adjudication of some court, surely the charge must be the law. Code, §§2598, 2599, 2600; Perry on Trusts, 427, 480. [314] 7. So in respect to whether the notes were debts, or advancements. Prima facie they are debts (23 Ga., 533), though it may be shown that they arc advancements. lb. 8. The entire charge appears to us sound..just, impartial, covering the issues plain enough to be easily understood by the jury, and in all respects as it ought to be except in the slip which the judge made in overlooking the fact that the tenth exception to the auditor’s report had been sustained, and thus he had not, on an important issue of fact, heard material evidence himself, and thereby had not reached a conclusion thereon, so as to make that conclusion any evidence of the truth. Qn this error, and this alone, a new trial is awarded, reluctantly, at least by myself, because I cannot well see how it can be to any great extent otherwise, under the statute of limitations, when tried again, unless something not now appearing be made to appear. Judgment reversed. Footnotes [*] See No. (2) in report.