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1H.E ATLANTA WEEKLY SUN, FOB THE WEEK ENDING AUGUST 21, 1872.
TH E ATLANTA SUN
From the Constitution.
BKau SOT23 OF THE DBCUlO.tS OF
THE SUPREME COURT OF GEORGIA.
Delivered in Atlanta Tuesday, Aug. 13^y 2.
C J. Lopez vs.Felix McArdle, adminis
trator. Relief Act of 1870, from
Muscogee.
MONTGOMERY, J.
A claim by one partner against his co
partner for an unascertained amount
growing out of partnership transactions,
and which can only be ascertained by a
settlement of the partnership concerns,
is not required before such settlement,
to be given in for taxation. Hence,
where a bill is brought to compel such a
settlement ot a partnership, which ceased
business without formal dissolution
before June, 1865, it is not necessary for
complainant to file an affidavit of pay
ment of taxes on the claim sought to be
enforced. Judgment reversed.
Wm. Dougherty, Blandford & Craw
ford, B. A. Thornton, W. F. Williams,
for plaintiff in error; L. T. Downing, for
defendant.
Wm. F. and Virginia Dennis, caveators,
vs. W. J. Weeks, propounder. Caveat
to will, from Talbot.
MONTGOMERY, J. . «
1. On the investigation of an issue of
devisavil sel non, where one of the
grounds of the caveat h, that the execu
tor did by fraud and deceit and fraudu
lent and false representations, procure
the testator to make the will the admis
sion of the executor, who takes an inter
est under the will, made after qualifica
tion, in reference to the conduct or acts
f of the executor himself, as to a matter
relevant to the issue, (and his statement
that he had procured the testator to make
the will for certain purposes is such),
should have been admitted as evidence
in cnief. The fact that such evi
dence was admitted in rebuttal to im
peach the executor, who testified as a
witness in favor of the will, is not the
full measure of the rights, of the cavea
tors, and they are entitled to a new trial
on account of the rejection of this testi
mony as evidence in chief.
2. Where one of the grounds of cave
at is undue influence exercised by the
executor of the testator, in procuring
him to make the will, evidence showing
that the executor, as agent of the testa
tor, in 1863 or 1864, applied to the Con
federate conscripting officer to have a
white man exempted from military ser
vice for the purpose of overseeing the
plantation of the testator, on the ground
that the latter was so unsound in mind
as to be incapable of attending to his
own business, is admissable in evidence
in ohief for what weight the jury may
give to it, to show the executor’s knowl
edge of the state of the testator’s mind,
where the evidence, with the exception
of that of the executor himself, shows
that the executor exerted'his influence
over the testator (which was proved to
be very great) to have the will made,
find all the witnesses testify that the tes
tator had been a man of very weak, if
not entirely unsound mind, for fif
teen years before his death, which oc
curred in 1869.
3. Evidence which ought properly to
have been offered in chief, but which was
then omitted through inadvertence,if of
fered with the rebutting evidence,should
be admitted if otherwise unobjectionable.
The paper in the handwriting of the ex
ecutor, made in 1857,showing the amount
of property in his hands as agent of the
testator, was proper evidence in chief,
as tending to show the amount of inter
est taken by the executor under that
elause of the will which relieved him
kom the payment of any balance that
might be found due by him to the testa
tor, other than that with which he is
charged in the will, and should have
been admitted with the re utting evi
dence, where ic was inadvertantly omit
ted to be given in in chief. Judgment
reversed.
B. Hill, H. L. Benning, Willis & Wil
lis, for plaintiffs in error; M. H. Blan-
ford, E. H. Worrell, for defendant.
Howard Hill and wife vs. A. 0. Fenton,
Equity, from Macon.
MONTGOMERY, J.
Where the court is of opinion that
there is no patent ambiguity in those
parts of a will affecting the property in
issue before it, and no latent ambiguity
is raised by proof of extrinsic circum
stances, the instructions of the testator
to the scrivener who drew the will are
inadmissible to shew that the testator
intended to dispose of his property in a
manner different from the direction it
would take when the ordinary rules of
• construction are applied to the words of
the will. Judgment affirmed.
Lyon & Irwin, Phil. Cook, for plain
tiffs in error; Poe, Hall & Poe, Nesbit
& Jackson, W. A. Hawkins, for defend
ant.
WARNER, C. J., concurring.
In my judgment, there is no ambigui
ty on the face of the testator’s will eith
er latent or patent, which will authorize
the admission of parol evidence to ex
plain it. Whatever may be the difference
of opinion as to the legal construction to
be given the words employed by the tes
tator, that does not create an ambiguity
ini he sense of the law, which maybe
explained by parol evidence. It is not
competent to raise an ambiguity in rela
tion to the testator’s intention by parol
evidence, extrinsic of the words of the
will, and then proceed to explain that
ambiguity so raised, by the same species
of evidence, and that is just what it pro
posed to be done in this case, after the
lapse of twenty years from the date of
the execution of the will. A testator’s
will, should be construed according to
the legal effect of the words contained
therein, when those words are not ambri-
uous, or of doubtful meaning. The m-
tention of the testator must be derived
from the plain, unambiguous words of
his will, and not from extrinsic parol evi
dence; otherwise, no man’s will can
stand, the parol evidence of witnesses
aI -\r o ^ eat ^i will make one for him.
McCay, J., dissented, but furnished
no written opinion.
Willoughby Jourdan, guardian,
Louis B. Miller, et al. executors.
for direction, from Randolph.
McCAY, J.
When the executor to a will filed a bill
for direction as to the meaning of the
L will making the legatee’s parties, and it
^peared that the testator had by his will
V*^.following dispositions:
■ d provided for the payment
debts were paid, his executor should di
vide bis whole estate, both real and per
sonal, into nine equal shares or parts:
each of his eight children and their rep
resentatives, to have one equal share
he did not assent to the legacy uncon
ditionally, but admitted, he had never
demanded rent or possession of the land
as executor. The only subjet matter in
controversy between the parties, is in re
subject to the draw backsand refundings lation to the four lots of land
»• a _ ? X . J J L L AV.On f ha 4- *• J <-» 1 kVia itimt
afterwards provided, and his three
youngest daughters to have the ninth
share extra.
3. His will, item by item, then pro
vided that each child should have de
ducted from his portion or share the ad
vancements made the child, which ad
vancements were specially mentioned
and their value.
4. An to the most of the children, he,
item by item, donated that as a part of
their portion, they should take certain
specified property, in some cases fixing
to the property a valuation himself, and
in other cases, saying that it should be
valued by appraisers,. As to one child,
and as to her alone, after saying she
should take, as part of her portion, cer
tain eight negroes at a fair valuation, he
adds: should the said negroes, at a fair
valuation, amount to more than her just
portion, she shall be required to refund
the excess.
6. In the 6th item he directed that his
son, Iverson G. take, as a part of his
portion, a negro man Peter, at $1,200,
another man Green, at a fair valuation,
and that he take at his choice, lot of
land 179, at $1,000, or lots 178, i79, 165,
166 at a valuation. He directed that all
of his lands not herein otherwise dispos
ed of, should be sold or kept together
as his executors should judge best, and
that his negroes not otherwise disposed
of or mentioned, should be divided
among his children, according to the
terms of this his last will, and that Kis
other personal property should be sold
for general distribution.
Held, 1. That taking the whole of the
will together it was the clear intent of
the testator to divide his property equa'-
ly among his children, except that he
gives his three youngest daughters one-
ninth of the whole, extra, of an equal
share.
2. That none of the property donated
in the will to be taken by the several
legatees as parts of their portions at a
fixed price, or at a fair valuation, are
absolute, specific legacies that are de
pendent upon the amount coming to
each on a division of the whole estate
into nine parts, as provided for in the
will, and if the property pointed out as
to be taken by any one legatee exceeds
his portion, he must account for the ex
cess.
Held, 3. That the 6th item of the will,
as the property to be taken by Iverson
G. Miller, stands on the same footing as
the other items, to-wit: he takes the
property there mentioned as part of Ins
portion; if its value exceeds his portion
as provided by the second item, he must
account for the overplus.
Held, 4. That when the executor had
forbid one of the legatees to have the
use of the land mentioned in the will as
part of his portion conditionally upon
the final settlement, said legatee should
account in said settlement for the use
of said land according to the facts and
the condition of tne estate. Judgment
affirmed.
H. Fielder, for plaintiff in error; John
T. Clark, for defendants,
Montgomery, J., concurred, but fur
nished no written opinion.
WARNER, C. J., dissenting.
On the 9tli day of November, 1863,
the testator mane his will, bequeathing
and dividing certain specific and general
legacies to his children named therein.
The object and intention of the testator,
as it appears from his will, was to make
an equal division of his property among
his children upon a final distribution
thereof, so far as the amount to be re
ceived by each was concerned, and to
accomplish that object he placed a valu
ation on the specific legacy bequeathed
and devised to each, so that when the
general distribution of the property, not
specially bequeathed and devised,
should take place, it might appear what
was the value of the specific legaoy which
each legatee had received. In other
words, the legatees under his will were
to take certain described property as
specific legacies, at the valuation placed
thereon by the testator, or at its ap
praised value, as a part of their portion
or share of his estate, and when the gen
eral distribution of his estate should
take place as provided by his will, the
specific legacies should be estimated ac
cording to the value placed thereon by
the testator, or according to the
appraised value thereof. There was a
large portion of the testator’s property
that was not specifically disposed of by
his wilL
The 15th clause of the will provides,
that his undevised slaves should be ap
praised, and divided amongst his chil
dren according to the terms of the will,
and that all his other personalty be sold
by his executors according to law for gen
eral distribution. The 11th item of the
will gave to his executors the right to
sell or keep as they pleased, the balance
of his land (not specifically disposed of I
as might be best for all of his heirs. At
the time of the making of the will, the
testator had a large residuary estate to
be divided among his children under the
will, which had not been specifically be
queathed or divised to any one of them,
The 6th item of the tastator’s will is as
follows: “I will and direct that my son
Iverson G. Miller, take as part of his
portion, the negro man Peter, whom he
has now in possession at $1,200 00 and
my negro boy, Green, at a fair valuation,
and that he take at his choice, lot of land
number 179, at $1,000 00, or lots num
bers 179, 178, 165 and 176 at a fair valua
tion, all of said lots being in the 5th dis
trict of the aforesaid county of Ran
dolph.” .
Iverson G. Miller died before the tes
tator, leaving as his sole heir and legal
representative, his infant child, Missouri
P. Miller, who is now the legatee under
this clause of the testator’s will. It ap
pears from the evidence in the record,
that Jordan was appointed Guardian of
Missouri P. Miller, and in 1865, he elec
ted as such Guardian to take for his ward
the four lots of land specified in the tes
tator’s will, at the valuation made by the
appraisers of the estate, (to-wit:) at the
value of $2,400 00. It also appears from
the evidence of Jordan that the executor
Louis B. Miller, placed him in posses
sion of the lots of land as Guardian, and
that he has continued in possession of
the same up to the present time, and that
the executor assented to the same. The
executor testified that he placed the
Guardian in possession of the land on
condition, that it nr as decided that the
land was the property of the estate, and
that after his not the property of his ward, and that
vs.
Bill
On the trial, the jury, under the charge
of the Court, rendered a verdict that the
executor had not assented to the legacy,
and that the guardian should keep the
land at the appraised value, subject to an
equal division with the other legatees un
der the will, and charged him with in
terest on the value of the land as fixed
by the appraisers. The verdict is sub
stantial^ in accordance with the charge
of the Court, to which the counsel for
the guardian excepted. There are two
questions to be decided in this case.
First, whether the bequest or devise of
the four lots of land was a general or a
specific legacy. Second, if it was a spe
cific legacy, can the specific legatee be
compelled under the law to abate that
specific legacy at the instance of the exe
cutor for the benefit of the ether legatees
under the will, who may have received
less than the appraised value of that spe
cific legacy ? What is a specific legaoy ?
A specific legacy is one which operates
on the property particularly designated—
Code 2422. The four lots of land be
queathed or devised to Missouri P. by
the testator’s will, are particularly desig
nated by number and district-, in the
county of Randolph. The will distin
guishes three particular lots of land from
all his other property, and if it is not a
specific legacy in the sense and meaning
of the law, I confess my utter inability
to comprehend what th * law means by a
specifio legacy, as contradistinguished
from a general legacy.
The four lots of land are especially given
to the legatee as a part of her portion to
be taken at her choice, at a fair valua
tion. The fact that the specific legacy
is to be a part of the legatee’s portion of
the testator’s estate, or that she is
to take the designated lots of land at a
fair valuation, does not make the legacy
any the less a specific legacy in the sense
ot the law. The same individual may
be both a specific and residuary legatee.
McGinnis vs. McGinnis—1st Kelly, 496.
Missouri P. Miller was both a specific
and a residuary legatee under the testa
tor’s will, and the only reason why a val
uation was placed on the specific legacy
by the testator was that when the resi
duum of the estate came to be distribu
ted, it might be seen how much in value
each specific legatee hud received out of
his estate. The testator was looking to
the distribution of the residuum of his
estate among his children, which consti
tuted the greater portion thereof when he
made his will.
The next question, is, can the specific
legatee, under the will of the testator,
under the law, be compelled, at the in
stance of the executor, to abate any por
tion of her specific legacy in favor of
the residuary or general legatees under
the will, when from causes unforeseen
by the testator at the time of making his
will, such residuary or general legatees,
have not received as much in value from
his estate as the specific legatee? There
are no creditors of the estate. When
this case was before this Court, at a for
mer term, at the instance of the execu
tor, the Court gave a construction to this
clause of the will, and held, that if the
guardian of Missouri P., elected to take
the four lots of land at the appraised
value thereof, and went into the posses
sion of the same with the assent of the
executor, he is entitled to hold the same
as the property of his ward under the
will, without abatement, so far as the ex
ecutor is concerned. See Jordan vs.
Miller, 41st Georgia Rep., 61.
The only disputed fact that exists in
the cese now, different from the facts
that were then before the court is, that
the assent of the executor to the guard
ian’s taking possession of the land for
the benefit of his ward, was conditional
and not absolute. The fact that he did
take possession, is not disputed, or that
the executor has never since demanded
possession of the land, or the rent there
of, from the guardian, but he now seeks
to have the specific legacy abated for the
benefit of the other legatees under the
will, on the ground that he never as
sented to the specific legacy. This is an
adroit attempt to evade the judgment of
this Court, in regard to the rights of the
specific legatee under the will of the tes
tator. The assent, or dissent, of the ex
ecutor, has nothing to do with her legal
rights under the will. If he has admin
istered it and turned the property over
to her guardian according to law, he has
no nght to interfere with it.
The assent of the executor to a legacy,
may be presumed by his conduct, as well
as by his express consent, and he cannot
by capriciously withholding his assent,
destroy the legacy, and a Court of equity
may compel him to assent to the legacy
—Code 2,416. The Court udder the
facts of this case, should have compelled
him to assent to the legacy, even if his
consent could not have been fairly pre
sumed by his conduct. The specific leg
atee was not bound to pay interest to the
executor on the value of her specific leg
acy for the benefit of the other legatees
—Code 2,423. But in no view of the
law as applicable to the facts ot this case,
as I understand it, can the specific lega
tee be compelled, or required to contrib
ute or abate, any portion of her specific
legacy in favor of the general or residu
ary legatees under the will of the testa
tor, and the executor had no right to the
possession of any part of it for the pur
pose of making distribution thereof. 1st
Roper on legacies, 361; 3d Williams on
Executors 1*165. The rule is that resid
uary and general legacies abate in favor
of specific legacies but specific legacies
do not abate in favor of residuary or
general legatees under the will of a tes
tator.
law. If it “> the law is more imperic
than the intention and the latter, will
yield to the former. No man’s will is so
high in its obligations upon the Courts,
as the laws of the laud.
“If the intention could prevail against
the law, then the will of a testator would
make or repeal the law, and the effect
would be that there would be no law to
regulate the transmission of property by
will.” To hold that the bequest or devise
of the four lots of land to Missouri P.,
in the testator’s will, is not a specific leg
acy, would be to ignore the law which
defines what a specific legacy shall be.
To hold that her specific legacy shall
abate in favor of the general residuary
legatees of the testator, and that the ex
ecutor can recover any part thereof, for
the purpose of distributing the same to
them, would be to ignore the law regula
ting the payment of specific legacies,and
general residuary legacies under the wills
of testators, when, there is not sufficient
assets to pay all in an equal amount.
In my judgment, Missouri P., the
specific legatee of the four lots of land
specified in the testator’s will, is entitled
to have and hold the same without abate
ment as against the claim of the execu
tor to recover any part thereof for the
benefit of the other lege tees under the
testator’s will, and that the judgment of
the court below should be reversed.
But it is said the testator’s intention
was to distribute his property equally
among his children, that each one should
receive the same amount in value; that
such was the intentiou of the testator is
quite clear, and if his property hadre
mained in the same condition at the tim
of distribution, as it was at the time he
made his will, his intention could, and
doubtless would have been carried out;
but it did not remain in the same condi
tion, and it must now be distributed
under the law which regulates specific
legacies and general and residuary lega
cies. The law must now control that
matter whatever may have been the tes
tator’s intention when he made his will.
The intention of testators cannot over
ride the law.
As was well said by Nisbet, J., in de
livering the judgment of this Court in
Williams vs. McIntyre, (8fch Geo. Re
ports 36.) “The testator’s intention is
imperative on the Courts, unless, it is in
conflict with some established rule of
Wm. A. Black vs. R. Burtin. Sci. fa. to
rerive judgment, from Schl6y.
McCAY, J.
When a judgment was obtained on the
1st of April, 1861, but no execution was
issued thereon until January 4, 1869,.
Held, That the judgment was not a
satisfied but a dormant judgment, and it
was error in the Court to dismiss a f cire
facias to revive, the same, as a dormant
judgment.
2. So far as the act of 1856, generally
known as Cone’s Act, provides that a
judgment upon which seven years from
its date, or upon which execution if is
sued no return is made in seven years,
shall, as between the parties thereto be
presumed satisfied, said Act is a statute of
limitations and was suspended by the
several Acts passed from 1861 to 1867
suspending the statutes of limitations.
Reversed.
B. Hill, M. H. Blandford, for plaintiff
in error. C. F. Crisp, W. A. Hawkins,
represented by R. F. Lyon, for defend
ant.
MONTGOMERY, J., concurring.
Were the questions involved in this
case res integra, I might have some diffi
culty m coming to the same conclusion
with Judge McCay. But this Court has
at least twice settled the principle.in
volved after elaborate argument by the
best legal talent of the State. On those
decisions the title to a vast amount of
property in Georgia now rests. To over
rule them would create a flood of litiga
tion, and make innocent purchasers pay
stale demands against their vendors of
which they never hear.
It is time that the law affecting titles
to Droperty in Georgia was settled, and
it should not be liable to change with
every change in the organization of this
court. For these reasons I concur in
the opinion of the Court as delivered by
Judge McCay.
WARNER, C. J., dissenting.
The judgment was not dormant under
the laws of this State, and there was no
necessity for its revival by scire facias,
and^for that reason the judgment of the
court below should be affirmed.
D. H. Thuuderburke, administrator, vs.
G. 0. Gorham. Demurrer to bill,
from Talbot.
WARNER, 0. J.
This was a bill filed by the complain
ant against the defendants, to make the
property of the estates of Wm. B. Pope
and Allen Pope, who died intestate, sub
ject to the payment of the complainant’s
debt. The defendants demurred to the
complainant’s bill, which was sustained,
and the bill dismissed, whereupon the
complainant excepted. The complainant
alleges that at the sale of the property of
his intestate, one George Gorham, as the
temporary administrator on the estates of
the two deceased Popes, and one Brown
purchased a certain amount of property
for the benefit of the two latter estates,,
«»nd gave his note therefor, which was
signed by him as temporary administra
tor; that ho obtained a judgment on said
note against George Gorham for $146 60
principal, and $14 73 for interest. Sub
sequently Willis J. Gorham was appoint
ed administrator on the estates of the
two Popes, and moved to set aside the
judgment obtained against George Goi-
ham so far a3 the same attempted to bind
the property of the estates he represent
ed, which motion prevailed.
It is not alleged in the bill that George
Gorham is insolvent. The complainant
can obtain and enforce his judgment
against the individual property of George
Gorham for the payment of his debt, for
aught that appears on the face of the
bill. The note given to the complainant
by George Gorham as temporary admin
istrator bound him individually for the
payment of it, but did not bind the
property of the estates which he repre
sented. If George Gorham is not in
solvent, but able to pay the note, there
is no good reason shown by the bill why
the complainant has not an ample and
adequate remedy at law to compel him
to do so. If George Gorham pays the
note to the complainant, and it was given
by him for the property purchased far
the benefit of the estates, and tne same
was appropriated and used for the bene
fit thereof, he may claim the right to be
reimbursed out of the property of the es
tates, on a proper case made, but the
complainant cannot look to the estate
for the payment of his note on George
Gorham unless he is insolvent, which is
not alleged. Let the judgment of the
court below be affirmed.
Marion Bethune, represented by W.
A. Little, for plaintiff in error; E. H.
Worrell for defendant.
T. R. Sanders vs. Ellis Manes. Com
plaint, from Talbot.
WARNER, C. J.
This was an action bronght by the
plaintiff against the defendant on
promissory note for the sum of $1 500*
dated 10th of October, 1863, and due 1st
P‘ *£.*^7’. 1865 - The note was sold
for $6,000 in Confederate money—was
worth at the time of the purchase $2 000
in the present currency. Defendanthad
sold one-half of the mill for Confede
rate money, and at the time of the trial,
was m the possession of the undivided
half of the land and mill as trustee for
his wife. The court asked the defendant
if he would give,up the property to the
plaintiff, he being willing to accept the
same and surrender up to defendant his
note. The defendant declined to give
up the propeity to the plaintiff.
The court then charged the jury that
the defendant Was not entitled under the
state of facts to any relief by way of
reducing the note sued on, that the only
relief for him was to surrender the land,
that he must either give up the land and
mill, or pay the note. The jury found
for the plaintiff $1,500 with interest and
costs of suit. The defendant excepted to
the charge of the court. This was a
Confederate contract, and the equities of
the parties were to be adjusted under the
provisions of the ordinances of 1865,
which the defendant relied on in his plea
to the plaintiff’s action.
In our judgment, the charge of the
court to the jury was error, the more es
pecially as the defendant was in the pos
session of the property in right of his
wife, and not in his own right. Let th«s
the judgment of the court below be re
versed.
B..Hill, M. Bethune, E. H. Worrell,
for plaintiff in error ; W. A. Little, for
defendant.
Elias Daniel vs. H. H. Sullivan. Com
plaint, from Talbot.
WARNER, C. J.
The plaintiff sued the defendant on a
promissory note in the county of Talbot.
The defendant filed his plea in abate
ment to the jurisdiction of the court,
alleging that he was a citizen and resi
dent of the county of Monroe in this
State. The evidence on the trial went
to show that the defendant was a married
man, that his wife and family resided in
the county of Monroe, but that the de
fendant had a plantation in the county
of Talbot, and spent a considerable por
tion of his time in the latter county.—
The court charged the jury “that if the
defendant had a family at and before the
commencement of the suit, consisting of
his wife and children, whom he had not
abandoned, and if his wife and children
were permanently resident and domi
ciled in the county of Monroe in this
State, then the defendant, by operation
of law, was a citizen of Monroe county,
although he might have had a place in
Talbot county and spent most of his time
at it.”
To this charge as given, and the refus
al to charge as requested, the plaintiff
excepted. There was no error in the
charge of the Court to the jury on the
facts as disclosed in the record, or in re
fusing to charge as requested. The dom
icil, or residence, of a person of full age,
and laboring under no disability, is the
place or county where the family of such
person shall permanently reside, if in
this State, and suit should be instituted
against him in that county. Code, 1689.
Let the judgment of the Court below be
affirmed.
Marion Bethune, represented by B. B.
Hinton, for plaintiff in error. E. H.
Worrell, W. A. Little, for detendant.
James Cook vs. Martha J. Cook. Libel
for Divorce, from Talbot.
WARNER, C. J.
The complainant filed a libel against
the defendant for a divorce. On the
trial the jury found a verdict for the de
fendant. The complainant made a mo
tion for a new trial, on the ground of
error in the charge of the Court, and
because the verdict was contrary to law
and the evidence which was overruled
by tbe Court, and the complainant ex
cepted. The evidence in the record, if
the jury believe the two witnesses, the
complainant and his brother, made out a
pretty clear case of adultery on the part
of the defendant. The complainant,
however, was an incompetent witness to
prove the adultery of his wife as declared
by the 3799th section of the Code.
Although we think the court erred in
charging the jury in relation to the aban
donment of his wife by complainant, and
his bad treatment of her (there being
no evidence to authorize the charge)
still as it was the exclusive province of
the jury in case of divorce to judge of
the credibility of the witnesses and to
determine whether sufficient proof had
been submitted to their consideration to
authorize a divorce between the parties,
and they having found by their verdict
that there was not, and the presiding
Judge being satisfied with the verdict,
we will not reverse the judgement of the
court below in refusing to giant a new
trial for the allaged error in the charge
of the court. In divorce cases the jury
of the vicinage, are much better acquaint
ed with the parties and witnesses, than
we can be, and of the propriety of de
creeing a dissolution of the marriage
contract. Let the judgment of the court
below be affirmed.
Cary J. Thornton, G. N. Forbes, rep
resented by Z. D. Harrison. Esq., for
plaintiff in error. No appearance for
defendant.
Montgomery and West Point Railroad
Company vs. John W. Duer, Ordina
ry. Demurrer, from Muscogee.
WARNER, C. J.
This was an action brought by the
plaintiff against the defendant to recover
the sum of $1,033 57 for taxes illegally
collected. The defendant demurred to
the plaintiff’s declaration, which demur
rer was sustained, and the plaintiff ex
cepted. It is not alleged in the decaration
in what manner the taxes received were
illegally collected ; that the taxes were
illegally collected and received by the
defendant, is the conclusion of the plead
er ; the facts going to show that the tax
es had been illegally collected and re
ceived by the defendant, should, have
been alleged, so that the Court might
judge, whether under the law applicable
thereto, the taxes had been illegally col
lected »and received. If the facts had
been alleged, the Court could have de
termined whether the collection of the
taxes was legal or illegal. It is not suffi
cient for the plaintiff to allege that the
collection of the taxes wa3 illegal, with
out alleging the facts which made it ille
gal. Let the judgment of the Court be
low be affirmed.
Blandford & Thornton, lor pi .intiff in
error. Henry L. Benning, for defond
ant.
Cox, Marshall & Co., efc al. vs. George
W. Nelson et al. Rule, vs. Sheriff,
from Houston.
WARNER, O. J.
This was a rule against the Sheriff
calling upon him to show cause why he
had not made the money on certain exe
cutions placed, in his hands against the
defendant. The Sheriff showed cause
in writing, which was traversed by the
plaintiffs and the facts were agreed to be
submitted to the presiding Judge, with
out the intervention of a jury. The
Judge, after hearing the case, discharged
the rule against the Sheriff, and the
plaintiffs excepted. It appears from the
not
returns of the Sheriff that hT^f
find any property of the defendant
fcept which had been set apart to him**
a homestead or was the crops
said homestead. The Sheriff
ordered to levy on certain cottoning
possession^ defendant. Itappe£aV he
the records of the Court of oSl! *
°S ea .:?.
and that the cotton on
directed to levy, and which was fonts? 1
the defendant’s possession, to-wit”?^ 111
two to four bales, was a part of the i, a!!®
stead, that is to say, in the words of
Sheriff’s return, was a part of t L 1?
raised on the homestead. cro P
It was a part of the crop raised on
homestead set apart to the defendant
then it was not subject, and the BkS
is not liable for failing to
thereon. If the defendant, in
Ins homestead on the land, went foX?
and had the growing crop on the land m
apart to him as personal property tW
did not place him in any worse conditte
as to the crop on the land set apart J,
homestead,he was entitled to the ctoZl
the homestead set apart to him, tvhethl
he had claimed it as a homestead of np
sonal property or not. The fact that b
claimed the crop growing on the land a
a homestead in personalty in his selied
ule, did not place him in any worse cot
dition than if he had not claimed it a
personalty—he was entitled to the cror*
raised on the land set apart as a hot^
stead anyhow. In our judgment then,
was no error in the judgment of &
court iu discharging the rule against tie
Sheriff on the statement of facts con
tained in the record. Let the judges
of the court below be affirmed.
Duncan & Miller, for plaintiffs in error
Warren & Grice, for defendants. 1
W. H. McCrony, etal., vs. Benj. Manet
Complaint, from Talbot.
McCAY, J.
The Tax Receiver’s book of thereto®
of taxable property, made out and re
turned as required under section 845 c
the Revised Code, is admissible in et
dence on the trial of an issue under
Act of October 13th, 1870, as to the ]
ment of taxes.
In an inquiry into the equities beta-
the parties, under the Ordinance of II
for the adjustment of Confederate at
tracts, the use which the defendant ms:
of Confederate money loaned, is note
terial to the issue. Judgment reveisi
E. H. Worrell, J. M. Matthews,
plaintiffs iu error; Willis & Willis, ih
sented by W. A. Little, for defendant 1
James 0. Cook vs. the North and Son
Railroad Company. Injunction, fro:]
Muscogee.
McCAY, J.
Where a bill was filed, setting up I
the cpmplainant had conveyed by dei
to a railroad company for layings
using its track, 100 feet width of
land through his plantation, and trustin
to the assurances of the President of til
road, that proper stock gaps should l
erected, as they might be needed, ‘
neglected to put in the deed any stipif
tion as to the gaps, and the bill prajt]
that the company might be enjoine]
from running its cars and using tbela
until the gaps were erected.
Held, That the injunction was pid|
erly refused by the Judge, even tboup
there might be equity in thebilJ. JalsJ
ment affirmed.
Henry L. Benning for plaintiff in ej
ror; Blandford and Crawford for defend
ant.
Isam & Mayo vs. Wm. Hooks. Injn
.tion, from Sumter.
McCAY, J.
This court will be slow to control f
discretion of the Judge of the Superi
Court in his grant of a temporary^
junction, especially if the bill contaif
charges of fraud. In this State, a lef
upon land is made by the entry of f
sheriff upon a fi fa.—there is no acti
seizure—and there is no levy until
entry is made. Judgment affirmed. I
N. A. Smith, Elam & Hawkee, M
plaintiffs in error; Phil. Cook, Hawkit^
& Guerry, for defendant.
Geo. W. Allen et al. vs. J. W. Lathrod
& Co. Foreclosure of Mortgage]
from Houston.
McCAY, J.
A mortgage upon real estate givenJ
secure “advances” to be made by ’
mortgagee to the mortgagor, for the pt|
pose of carrying on the farm ol
mortgagor for 1800, is not valid for w-j
of a sufficient description of the debt a
tended to be secured.
2. A mortgagor is estopped from-
nying his own title to the property En
gaged and third parties claiming title H
the land cannot, at law make tkemsek
parties to the proceedings to fore
for the purpose of ascertaining
rights. The judgment is between
parties to the mortgage and binds»
and tnem only. Judgment affirmed.
Duncan & Miller, Poe, Hall <£ Poe;jj
plaintiffs in error. Warren and r
for defendants.
E. H. Worrell, administrator, etal.
Jackson Gill, administrator,
plaint, from Marion.
MONTGOMERY, J.
Where a testator, in 1854, made Jj
will, by which he left certain land to
son, whom he appointed executor,
in 1856 conveyed the land to his sos
deed, reserving a life estate to hi® 1
and delivered the deed to his sod,
legacy is adeemed. If, on the deatM
the testator, in March, 1864, the ^
takes immediate possession of tbs--',
claiming it under the deed, and in'!*]
ary, 1865, prove the will ami qu^J
executor, but does not return tbe
part of his father’s estate, he is By,
topped by the probate and his q na y.
tion as executor, without more,- 17
setting up his title under the deed advfj
to the will. Judgment reversed. i
B. Hill, B. B. Hinton, E. H. ^°!;1
for plaintiffs in error; M. H. Blann*^
lor defendant.
J. B. McCrary and Isaac McCrary!
Alfred Austell, et al. Demurrer toi
from Talbot.
MONTGOMERY, J.
When a mortgage of realty in Cec--
is executed in New York before a J
missioner of Deeds only, witUon
other witness, a Court of Chancery ^
jurisdiction to reform and loreclos<-
mortgage. Judgment affirmed. J
Blandford & Crawford,"Willis <* ‘J
represented by W. A. Little, for P**J
in error; E. H. Worrell, B. Hi”» 1
fendant-s.