Garrett's Adm'rs v. Garrett

GOLDTHWAXTE, J. On the trial below, the evidence tended to establish the following facts: The plaintiffs, J. H. & B. S. Garrett, were indebted to one Dyer, by judgment, for upwards of two thousand dollars ; and at their request, the defendant, John Garrett, and one Stamper, gave their notes to Dyer, endorsed by the plaintiffs, for the amount, and, to secure themselves, took control of the judgment, and received from the plaintiffs some sixteen hundred dollars in notes on other persons. It was agreed, by parol, between the parties, that Stamper and the defendant were to control the judgment and the notes, so as to secure themselve's against the note given by them to Dyer; and if the plaintiffs paid this debt, they were to receive the benefit of the amount which was collected un the judgment and the notes received from them. Under this arrangement, an execution was issued upon the judgment, which was levied on a tract of land ; and this land, Stamper, who was examined as a witness, swears, was bought by Mm at the sale, and the amount credited on the [697] execution. This tract, he also swears, was exchanged by him for another tract, which he sold, taking a note for the purchase money, and this note he turned over to the' defendant, for the benefit of the plaintiffs ; and he also swears, that he was informed by him that he had collected the money upon it. The statute of frauds of Georgia, in which State the arrangement was made, was offered in evidence ; and its terms are substantially the same with our own. There was other testimony introduced, but it is unnecessary to state any portion of it in connection with the question presented by the first charge, which was, in effect, that the statute would be no defence, if the jury believed the facts stated by the witness Stamper, in relation to the purchase and sale of the land, the turning over of'the note received by him for the purchase money to the defendant for the benefit of the plaintiffs, and the collection of the note by him. It is supposed by the counsel for the plaintiff in error, that this charge was erroneous, for the reason, that it rested the case solely upon the testimony of the one witness referred to, instead-of the whole evidence. But such is not its effect. There was nothing in the charge, which excluded, either expressly or impliedly, any of the other evidence in the cause; and had -it been apprehended that any such inference could have been drawn from it, the defendant could have been protected by asking the necessary instructions from the court. It cannot be doubted, that the judge may instruct the jury as to the law in the different phases in which the case may be presented upon the evidence ; and if the evidence of one witness tends to prove certain facts, there can be no error in declaring the law upon these facts; and this was all that was done in the' charge referred to. The question of law which it involves, is simply as to the application of the statute of frauds to the facts as stated by the witness Stamper. Upon the evidence of this witness, the defendant must be regarded as occupying the position of surety for the plaintiffs ; and conceding that any agreement with them, not in writing, to buy lands under execution and pay the proceeds to them, upon a re-sale, would be within the statute, yet, if lands were actually bought under such an agreement, and resold, and-the money paid to a third person for the benefit of [698] the parly with whom the agreement was made, there could, we apprehend, bo no question as to his right to recover it. It would be money had and received to his use. The case we have put, is identical, in principle, with the one before us, in the aspect in which we are considering it. If the contract was void as to the lands, by force of the statute, then Stamper was not bound by it. He had the right to make the purchase, and when made, it would enure to his own benefit. He considered, however, that as the plaintiffs had paid the debt on which he was their surety, they were entitled to the proceeds of the land, and accordingly turned over the note which he received on the re-sale to the defendant for the benefit of the plaintiffs. This he had a perfect right to do, and the defendant could not gainsay the appropriation. What we have said disposes of the first and third charges. Th'e second charge, when taken in connection with the evidence, simply asserted the legal proposition, that admissions made by plaintiff's were not conclusive upon them, unless they were made under such circumstances as to amount to an estoppel in pais, which the testimony shows was not the case; and in that there was no error. In relation to the charge which was predicated upon the insolvent laws of Georgia, and the failure of the defendants in error to insert in their schedule their interest in the proceeds of the land, it is only necessary to observe, that if the contract was void, they had no interest whatever in such proceeds. But, independently of this ground, it is to be remarked, that there is nothing in the laws referred to, as given in evidence upon the trial, which divests the insolvent of his ownership in the property omitted. He may be convicted of perjury for falsely taking the oath which the statute prescribes, or the property may be subjected to the satisfaction of his debts ; but there is no principle upon which his debtor could take advantage of the fraudulent omission on his part to insert in his schedule the demand sued for, by way of de-fence to such action. So, also, in relation to the charge which was requested, to the effect that the plaintiffs could not recover if the arrangement between them on the one part, and the defendant and Stamper on the other, was made in the year 1833, and the [699] debt to Dyer paid off more than sis years before the commencement of the present action. If the plaintiffs were entitled to recover at all, it could only Toe upon the ground, that the defendant had received money to which they were entitled ; and the statute could not begin to run, until the cause-of action accrued, which could not be until the money was received. There was no error in overruling the answer of the witness Stamper to the tenth direct interrogatory, since, in no aspect in which it could be considered, did it involve the question of title to real estate. If, however, it was conceded that it did, as so much of the answer as states the understanding or agreement between the parties, and what disposition the witness made of the property, was admissible, the court was not bound to sustain an objection which went to the whole answer, only part of it being illegal. As to the exception taken by the appellant to the admission of the answer of the witness Sturgiss to the second direct interrogatory : This answer disclosed that the plaintiffs below had been engaged as partners in Georgia, and had become liable to one Dyer upon a note which was in judgment; that Dyer transferred the same to Stamper and John Garrett, in consideration of their note, endorsed by the plaintiffs; and it was also in evidence, that Stamper bid off certain lands of the plaintiffs, at an execution sale on the judgment. The answer was objected to, solely on the ground that it tended to vary the terms of the sale, and the effect of the title of the witness Stamper; and this, consequently, operated as a waiver of every other objection. — Creagh v. Savage, 9 Ala. 959. Under this rule, however objectionable the answer may have been in other respects, we are unable to perceive how it tended to change the effect of the sale under execution, and the purchase by Stamper ; the more especially as it was offered in connection with the law of Georgia, where the assignment was made, which recognized its validity, and authorized the collection of the judgment by the assignee. The same principle applies to the objections which were made to the other answers of this witness upon the same ground. There is nothing in any of them, which tends to vary the legal effect of the sale to Stamper. Conceding that the agreement be [700] tween the plaintiffs on the one part, and Stamper and the defendant on the other, so far as the same relates to'the purchase of lands under the execution, may have been within the statute of frauds; yet Stamper had the right to purchase, and to pay the money resulting from a re-sale of the lands to the plaintiffs ; and if he paid it to the defendant, for their benefit, they could, as we have seen, recover it from him, and the statute of frauds would not prevent it. What we have said in relation to the objections made to the testimony of the witness Sturgiss, applies equally to those which were made upon the same ground to the evidence of the other witness. ■ In relation to the motion to exclude the portion of the answer of Sturgiss to the fifth direct interrogatory, to the effect that the debt of Dyer had been paid, for the reason that it did not show that the payment was made before the commencement of the action, — there was no error, because the evidence of the witness Stamper tended to show that such was the case. Here were, then, two testifying as to the payment of the same debt, — one locating the payment at a period before the commencement of the suit, the other not locating it at all. As there was but one payment, the testimony referred to of the last witness must be regarded as corroborative of the evidence of the first as to the payment, and in this aspect it was properly admitted. As to the objection taken to that portion of the answer of the witness Sturgiss to the fifth cross-interrogatory, which stated that the plaintiffs, at the time of filing their schedule, “ did not include any of the assets turned over to indemnify the defendant and Stamper, and witness advised them that they had no right so to do,” — it is certain that the defendant had not the right to object to the first part of it, as it was in direct response to the question propounded by the objector; ' and a part being admissible, under the influence of the principle we have so frequently asserted, it was no error to overrule an objection which went to the whole. We have gone through all the points made upon the record, and we have only to add that the judgment must be affirmed. Rice, J., having been of counsel, not sitting.