Duncan research files of
Dooly Co. GA Inferior Court Minutes 1847-1892
Vol. 1847-1862, Suits, indexed (FHL film 367,166)
Pg.446: Petition of George M. Duncan, admin. of Jas. E. Duncan decd, that Benjamin Grantham, Hickson M. Jesey and Asa Williams owed him $59 and interest payable to George M. Duncan admin. of estate of J.E. Duncan; notes dated Jan. 13, 1853. Filed 26 May 1857.
Vol.1847-1866 - no index (FHL film 367,167)
Vol.1863-1874 - no Duncan
Dooly Co. GA Ordinary Court Minutes (FHL film 367,161)
Vol.A, 1847-1861 - no Duncan
Vol.B, 1861-1872 - no Duncan
Dooly Co. GA Superior Court Minutes
Vol. 1847-1852 - no index (FHL film 367,169)
Vol. 1852-1857 - no index
Vol. 1857-1871 - no index (FHL film 367,170)
"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; from Savannah term to Americus term, 1852" ("Georgia Reports") Vol.11, by Thos. R.R. Cobb, pgs.63 to 66, Columbus, January term 1852 (California State Law Library, Sacramento, 12/2003; MAD's extract)
GEORGE M. DUNCAN, plaintiff in error, vs. SEABORN C BRYAN, trustee, &c., defendant in error; No. 11, Supreme Court of Georgia; 11 Ga. 63; January, 1852, Decided.
Motion to dismiss a bill, in Dooly Superior Court, Decision by Judge WARREN, November Term, 1851.
Seaborn C. Bryan, as trustee for Mrs. Mary Wallace, filed a bill against George M. Duncan, her former trustee, alleging, that Wm. Britton, by his last will, made the following bequest: "Item. -- I lend to my niece, Mary Edwards, one negro girl and her increase, Corboro, during my niece's natural life, and at her death, to the lawful issue of her body," and a limitation over, in case of her death without lawful issue. That Mary Edwards intermarried with Richard Wallace and had issue, William T. Wallace; that Richard Wallace, being involved in debt, and his creditors being about to interfere with the said negro and her increase, to pay his debts, the Superior Court of Houston County, at its Term, 18, upon the petition of Mary Wallace, appointed James Holderness, trustee, to protect and preserve the rights of the said Mary to the said negroes; that at the April Term, 1841, the same Court appointed George M. Duncan trustee in the stead of James Holderness, who was present consenting thereto, and who accepted the trust and received from Holderness the proceeds of the hire of the negroes; that in 1844, Duncan delivered up to Mrs. Wallace, a portion of the negroes, but retained the balance, under a pretended claim.
The prayer of the bill was, for an account for all the hire and profits of the negroes, and that he be decreed to deliver up to the present trustee, the remaining negroes. Defendant's counsel moved to dismiss this bill, on the ground that the case made did not authorize a decree. The Court below refused to grant the motion, and this decision is brought up for review.
(opinion) William Britton died in South Carolina, bequeathing to his niece, Mary Edwards, a negro woman by the name of Corboro. The following is the clause in the will of Britton, disposing of this property: "I lend my niece, Mary Edwards, one negro girl and her increase, Corboro, during my niece's natural life, and at her death, to the lawful issue of her body; and in case my niece Mary should die without issue or a minor, then it is my will and desire, that this negro girl, Corboro, and her issue, should revert to my niece, Nancy, and in like manner to the lawful issue of her body."
Mary Edwards, the legatee, afterwards intermarried with Richard Wallace, and removed to the State of Georgia. Wallace, the husband, being in debt, and his creditors having instituted proceedings to subject Corboro and her children to the payment of their claims, Mrs. Wallace, the wife, came into Court and applied to have James Holderness appointed her trustee, to protect this property from her husband's contracts. Holderness, some time thereafter, surrendered up the trust, and George M. Duncan, the defendant, with his consent, was substituted as his successor.
And this bill is filed by Seaborn C. Bryan, who has been appointed trustee, pendente lite, of Mrs. Wallace, to compel Duncan to account for this property and its proceeds. Duncan, by his solicitor, moved to dismiss the bill for want of equity, which motion was refused by the Court, and this refusal is assigned as error.
The general doctrine is not disputed, that one who has accepted a trust and acted upon it, will not be allowed to repudiate it when called upon to account. But it is insisted that, under the will of Britton, Mrs. Wallace took no separate estate, but an estate for life or in fee, which was transmissible, and upon which the marital rights of Wallace, the husband, attached; that as to these slaves, she is not sui juris, and that Chancery cannot render a decree in her favor.
We concede that this is the true construction of Britton's will, and that if the right of Mrs. Wallace rested on this foundation alone, that it could not be sustained. But Duncan having acknowledged this to be separate property, and it having been adjudged to be such, by a Court of competent jurisdiction, whose decision remains unreversed; and Duncan having obtained possession of the negroes, under the order of the Court appointing him trustee, it is neither consistent with sound law nor good conscience, to permit him to deny the relationship, when summoned by that same Court, to account for his stewardship.
By the order of the Court appointing him trustee, this is separate property, so far as he is concerned, and Mrs. Wallace is sui juris, as to this estate, in a controversy between her and her trustee. Should the rights of third persons intervene, either of Mr. Wallace, the husband, or of his creditors, who were no parties to this proceeding, the question would present a very different aspect.
While it is admitted that Duncan cannot deny his character of trustee, it is argued that he holds the slaves in trust for the true owner, and not for Mrs. Wallace. The answer to this is, that Duncan was appointed trustee for the wife, and for nobody else; and that as yet, no other parties are before the Court.
Again, it is contended that the order appointing Duncan, was ex parte, and therefore, not binding. Grant this, nothwithstanding the contrary appears by the record to be true, still, if Duncan came in afterwards and made himself a party to it by accepting the trust, as he did, it is such a ratification of the proceeding as would conclude him. In short, having consented to act as Mrs. Wallace's trustee, he will be forever afterwards precluded from contesting the fact in any suit between themselves. The law forces no one to accept a gift of an estate, whether made in trust or otherwise. It was competent for Mr. Duncan, to refuse both the estate of Mrs. Wallace and the office attached to it. But having once accepted the trust and got possession of the property, he cannot renounce or throw off the duties and responsibilities thus voluntarily incurred.
We cannot discover any error in this case, and therefore affirm the judgment.
"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; from Savannah term to Americus term, 1852" ("Georgia Reports") Vol.11, by Thos. R.R. Cobb, pgs.67 to 79, Columbus, January term 1852 (California State Law Library, Sacramento, 12/2003; MAD's extract)
SEABORN C. BRYAN, trustee, &c., plaintiff in error, vs. GEORGE M. DUNCAN, defendant in error; No. 12, Supreme Court of Georgia; 11 Ga. 67; January, 1852, Decided.
In Equity, in Dooly Superior Court.
The bill filed in this case, by plaintiff in error, as the trustee of Mrs. Mary Wallace, a feme covert, set forth that Wm. Britton, by his last will, made the following bequest: "Item. -- I lend to my niece, Mary Edwards, one negro girl and her increase, Corboro, during my niece's natural life, and at her death to the lawful issue of her body," with a limitation over, in case of her death without lawful issue. Mary Wallace intermarried with Richard Wallace, and had issue, William S. Wallace. Richard Wallace being involved in debt, upon the petition of Mary Wallace to the Superior Court of Houston County, a trustee was appointed to protect the said negro and increase, as the separate property of Mary Wallace. Afterwards, at April Term, 1841, George M. Duncan was appointed trustee, and accepted the trust, and retained possession of the property and its hire, until 1844, when he delivered up a portion of the negroes, retaining the remainder, under a claim founded upon a sale from Wallace and wife, to him. The prayer was for an account and the delivery up of the balance of the negroes, as trustee under the aforesaid appointment.
The answer of Duncan admitted the facts charged as above, but submitted that under the will of Britton, no separate estate was created in Mrs. Wallace, but that Richard Wallace, by his marital rights, was the true and lawful owner of the estate taken by Mrs. Wallace under the will. The answer farther stated, that all the negroes claimed as trust property, were levied on as the property of Richard Wallace, and defendant, as trustee, interposed, or rather prosecuted a claim thereto, until the year 1844, when he was advised by his counsel, W. Poe, Esq. and H. G. Lamar, Esq. that the property was subject to the fi. fas. against Richard Wallace; that Richard and Mary Wallace, under the advice of the said counsel, then became anxious to sell a portion of the negroes and pay off the judgment, and thus secure the remainder of the property to Mrs. Wallace; that they urged on defendant to become the purchaser of five of the negroes, which he consented to do, and gave therefor a full price. By the advice of the said counsel, the bill of sale was made by Wallace and wife, to James E. Duncan, who then conveyed to defendant; the whole arrangement being made with the knowledge and consent of Mrs. Wallace, and being in every respect, fair and bona fide. The answer farther stated, that the defendant had fully accounted for the hire, &c.
A great volume of evidence was submitted on the trial, the sum of which was, to sustain the answer of defendant, in whose favor the Jury rendered a verdict. To the rulings of the Court upon this trial, exceptions were filed.
1st. The complainant objected to the admitting in evidence the bill of sale from Richard Wallace and wife, to James E. Duncan; the bill of sale from James E. Duncan to George M. Duncan; the fi. fas. against Wallace, paid off by Duncan; a receipt of Mary Wallace for $737, in part for hire of negroes. The Court overruled the objections, and to each decision exceptions were filed.
2d. Complainant objected to the reading in evidence the depositions of W. Poe, Esq. in reference to the advice and counsel given by him, as set forth in defendant's answer, on the ground that these were confidential communications. The Court overruled the objections and complainant excepted.
3d. Complainant's counsel requested the Court to instruct the Jury as follows:
1st. That the receipt and acceptance of the property sued for as trust property, and the hiring of it as trust property, is conclusive as to the character of defendant's possession, and estops him from denying his character as trustee, or the title of Mrs. Wallace.
2d. That defendant is also estopped from denying his character as trustee and the title of Mrs. Wallace, by interposing a claim to the property and giving a claim bond.
3d. That when a trustee buys of his cestui que trust, the purchase, though not absolutely void, is voidable, and may be set aside at the instance of the cestui que trust, who has the option of vacating or affirming the purchase; and it makes no difference that the sale was bona fide, and for a fair price, provided the cestui que trust makes the application within a reasonable time; and in this case, the time runs only from the appointment of Bryan, she being under disability.
4th. That if the Jury believed from the evidence, that the defendant purchased from Mr. and Mrs. Wallace, the latter being his cestui que trust, himself, but procured them to make the bill of sale to James E. Duncan, his brother, and James E. Duncan conveyed to defendant, it is evidence of fraud, and the sale should be set aside; and where the sale is set aside on the ground of actual fraud, the purchaser is not entitled to a return of the purchase money.
5th. That the trustee cannot himself buy or purchase of the cestui que trust, the trust property to pay the debts which he holds against the husband of the cestui que trust, unless by the express and free consent of the wife, cestui que trust, which consent must be unequivocally shown; and not then, until the relation of trustee and cestui que trust is dissolved. And that a trustee of a feme covert will not be permitted to mismanage the trust estate so as to subject it to the debts of the husband; and a Court of Equity will follow the trust property into the hands of the holder, unless when found in the hands of a bona fide holder without notice of the trust.
6th. That the defendant, Duncan, cannot set up the title of Richard Wallace, if he had any, bought by the said Duncan, as a defence in the present suit; and complainant, to entitle himself to a decree, is not bound to do more than to show that defendant received the property as trust property; and if this fact is shown, the Jury should decree in this case, the return of the trust property to Mrs. Wallace, upon condition of the purchase money with the interest, being re-paid, and the defendant paying the hire of the negroes which accrued, and for which he is liable; and that defendant is liable for the hire of the negroes from the time he was appointed trustee.
7th. That if the Jury believe from the evidence, that the bill of sale taken by Duncan, defendant, from Wallace and wife, through James Duncan, was intended as a mortgage merely, that the complainant may redeem the property under the circumstances of this case, on the re-payment of the money advanced by Duncan, with the interest on it, and that defendant should pay a reasonable hire for the negroes, and be decreed to return the same.
8th. If the Jury believe from the evidence, that the bill of sale was signed by Mrs. Wallace, under the influence, and at the request of her husband, or of her trustee, or of both combined, and not freely and voluntarily, that the sale should be set aside, and the property sued for delivered up, and the hire paid; and that the laws presumes that the wife is at all times under the control of her husband, and the onus of showing she has acted voluntarily, is on the defendant. And if the sale is put aside upon this ground, the Jury should put the parties back where they were, giving the negroes to complainant, and allowing defendant to keep open his fi. fas. against Wallace.
9th. That if the Court should be of opinion that the will of William Britton was material in this case, that said will does not vest a fee simple estate in Mrs. Wallace, formerly Mary Edwards, in the negro Corboro and her increase, but constitutes a mere loan for life, under which she is entitled only to the use, as a personal benefit, of the negro and her issue, at the pleasure of the lender, and took no estate or title to the negro Corboro, or her increase, that she or her husband could convey to a purchaser.
10th. Defendant cannot charge and discharge himself by his answer; that he cannot by his answer in this case, discharge himself from his liability to account for the property he received as trustee, and the hire thereof, but must establish his disbursements, if any, by independent testimony.
The Court declined and refused to give these instructions to the Jury, except the 10th and last; and on the above stated nine grounds, charged the Jury as follows:
1st. The Court charged the Jury, that it could not charge upon the first ground as requested, but charges that the acceptance of the property sued for, by Duncan (defendant) as trust property, is conclusive as to his being trustee; but if afterwards, Wallace and wife became convinced that the property was not trust property, from the advice of counsel, that defendant is not estopped from disputing complainant's title to the negroes; otherwise he is. Having been advised by counsel that it was not trust property, defendant might purchase it and take a good title, if Mrs. Wallace had also been apprised of the advice that it was not trust property, and the sale was a fair and bona fide sale.
2d. The affidavit and claim bond of Duncan, does not estop him from denying complainant's title to the property, when the trustee and cestui que trust, under the advice of counsel, acted under the belief that it was not trust property, if no advantage was taken of Mr. and Mrs. Wallace to convince them it was not trust property, and Duncan had claimed bona fide, and afterwards acted under the advice given by counsel, and with a knowledge of this by him and Mrs. Wallace.
3d. The third request, is the law where the trustee purchases at public sale, or at private sale from himself. A trustee may purchase the trust property of his cestui que trust, under circumstances which would prevent its being avoided on terms. The trustee may deal with his cestui que trust; but if any advantage is taken -- if the facts show a strong suspicion of fraud -- the Jury may set aside the sale. And slighter evidence is required in this case to rescind the contract, than in an ordinary case; and Courts and Juries should scrutinize with care, transactions between trustee and cestui que trust, at the suit of the cestui que trust.
4th. The purchase, through James Duncan, is good, if Mrs. Wallace knew that George M. Duncan was taking the title through James Duncan. If there is fraud in the purchase, and the sale is rescinded upon that ground, the purchase money should be refunded. If, however, any advantage was taken by the trustee in the purchase, it would vitiate the purchase.
5th. If this was a trust estate, which in the opinion of the Court it is not, and Duncan purchased it without the consent of Mrs. Wallace, the sale should be set aside.
6th. If the property sued for here, was the trust property of Mrs. Wallace, Duncan could not set up the title of Richard Wallace against it; but this is not trust property.
7th. If the bill of sale relied upon by defendant, was a mortgage merely, complainant's bill should have been filed to redeem the property; but under this bill, the relief asked for could not be granted, as the bill does not set up a mortgage, so as to enable defendant to reply and defend himself against such a case.
8th. If there are any circumstances of fraud, the Jury may judge of them. In this case, the wife cannot be presumed without proof, to be under the influence of her husband, when there is no charge in complainant's bill, that she, Mrs. Wallace, had signed the bill of sale under the influence of her husband.
9th. The Court is of opinion that the will is material in this case. Under the will of William Britton, a life estate in the negro woman, Corboro and her increase, is given to Mary Edwards, now Mrs. Wallace; and it is not now necessary for the Court to determine whether the remainder over is good or not. Under this will, Richard Wallace, the husband of Mrs. Wallace, by virtue of his intermarriage with Mary Edwards, took an estate for his wife's life in the negro Corboro, and her increase, which Richard Wallace could sell; and it could have been sold by his creditors for his debts, under Mr. Britton's will.
The Court having charged as stated on the preceding grounds, then proceeded to charge the Jury farther:
That the purchase in this case from Mrs. Wallace is not, per se, void. There must be some evidence of fraud, and the bill does not sufficiently charge the fraud in this case. If Poe advised Mrs. Wallace and Mr. Wallace, and Duncan, that it was not trust property, then Duncan can purchase. It depends on whether the parties were advised that it was not trust property, and whether it was a fair and bona fide transaction, in this, that it was well understood by them, that the advice of counsel was, that it was not trust property.
To which charge, as given to the Jury, and refusal to charge as requested, solicitors for the complainant, in open Court, and during the trial of said cause, excepted.
Upon each of these several exceptions, error has been here assigned.
(Opinion:) On the trial of this cause in the Court below, various exceptions were taken to the rulings of the Court, most of which, must necessarily depend upon the decision of the main and controlling question made by the record.
The great question in the cause is, whether the defendant, George M. Duncan, who was appointed trustee of Mrs. Wallace, of what was supposed to be her separate property, under the last will and testament of Wm. Britton, deceased, and who accepted the trust, is now estopped from setting up a title to the property derived from Mary Wallace, his cestui que trust, and her husband, Richard Wallace, according to the facts disclosed by the record before us?
The first question to be settled is, whether that clause of William Britton's will, under which Mrs. Wallace derives her title to the slave Corboro and her issue, created and vested in her, a separate estate, to which the marital rights of her husband could not, and did not attach, on her intermarriage with him. The clause of the testator's will, under which Mrs. Mary Wallace claims Corboro and her increase, as separate property, is in the following words: "I lend my niece, Mary Edwards, one negro girl and her increase, Corboro, during my niece's natural life, and at her death, to the lawful issue of her body, and in case my niece Mary should die without issue, or a minor, then it is my will and desire, that this negro girl, Corboro and her issue, should revert to my niece, Nancy, and in like manner, to the lawful issue of her body."
Whether Mary Edwards (now Mrs. Wallace) took an absolute estate to the negro and her increase, or only a life estate, was not made a question on the trial, and we express no opinion as it regards that point. The question now made for our consideration and judgment is, whether a separate estate was created to the property bequeathed to Mrs. Wallace, so as to prevent the marital rights of her husband from attaching to it.
It is insisted by the counsel for the plaintiff in error, that this was a loan of the property by the testator to the legatee; that the title thereto remained in his legal representatives after his death, and that no title vested in Mrs. Wallace. This is certainly a very strange and inconsistent argument, to be urged by the counsel for Mrs. Wallace, who is seeking to make the defendant responsible as her trustee, on the ground, that this identical property is her separate estate, under the will of her father. If no estate to the property vested in her under the will, of course, she had no separate estate in the property. In our judgment, however, she took at least a life estate in the slave Corboro and her issue. The word lend, as used by the testator in this will, is equivalent to the word give; for the reason, that the testator evinces a clear intention to part with the entire dominion over the property bequeathed. After his death, the property never could have reverted to his executors. A final disposition of it is made by the testator. The legatee, then, took at least a life estate in the property bequeathed, and there being no words in the will, creating any separate estate to the property in her, the marital rights of her husband attached thereto, and the same, by operation of law, became his property, and liable for the payment of his debts.
Taking this view of the estate created by the will of Wm. Britton in Mrs. Wallace, the next point made by the record is, that inasmuch as Duncan was appointed trustee by the Court of Chancery, on the motion of Mrs. Wallace, to protect this particular property, as her separate trust property, and having accepted the trust, he is now estopped from denying that it is her separate trust property; and therefore, he shall not be permitted to show that he has made a bona fide purchase of this property from Richard Wallace, her husband, with the knowledge and consent of Mrs. Wallace, his cestui que trust.
Conceding as we do, that in a mere contest between the cestui que trust, and her trustee, for an account of the trust property, without more the trustee could not defend himself from accountability, by showing that some third person had a paramount title to the property in his hands, which he had received as trust property under his appointment, from his cestui que trust; yet, that is not the case made by this record. The record here shows that the property in controversy, was levied upon to satisfy sundry executions obtained against Richard Wallace, in favor of his creditors; that the defendant, as the trustee of Mrs. Wallace, prosecuted a claim to that property, as provided by Statute, and during the pendency of that claim, he was advised by his counsel that it could not be sustained in law, but that the property would be found subject on the trial -- the same not being the separate property of Mrs. Wallace, under the will of her uncle. Acting upon this advice of counsel, an arrangement was made between the creditors of Wallace and the defendant, with the consent and approbation of Richard Wallace and his wife, that the defendant should purchase eight of the negroes, and pay the executions with the proceeds, so as to enable Wallace and wife to retain the balance of the negroes. Wallace and wife executed a bill of sale to James E. Duncan, for the negroes, with the knowledge and understanding at the time, that it was for the benefit of the defendant, who was the actual purchaser of the property from Wallace and wife. Subsequently, James E. Duncan conveyed the property to the defendant. The Jury have found by their verdict, that the purchase of the eight negroes by the defendant, was a fair and bona fide transaction, and that he has fully accounted for the use of the property while he held it as the trustee of Mrs. Wallace. The plaintiff in error makes two points in relation to this branch of the case. First, he insists that the defendant is estopped from setting up his title from Richard Wallace to the property, for the reason, as he alleges, that he received it into his possession as the separate property of Mrs. Wallace. Second, that considering it as the separate property of Mrs. Wallace, the sale of the property by her to the defendant, as her trustee, was void, especially as the sale was made through the intervention of a third person. Now, in relation to the first point, it is quite clear, we think, that the judgment of the Superior Court, appointing the defendant as trustee, and his acceptance of the trust, did not and could not, have prejudiced the rights of Richard Wallace, the husband, or his creditors, who were not parties to that judgment. The mere application, on the part of Mrs. Wallace, to have a trustee appointed, to protect what she may have supposed was her separate property, and the appointment of such trustee, did not divest the husband of his title to the property, which he acquired by virtue of his marital rights.
The defendant derives his title to the property, not only from the husband, who was in fact, and in law, the owner of it, to the extent of his wife's interest; but he also derives his title from Mrs. Wallace, his cestui que trust, which involves the second proposition contended for at the bar.
Viewing this as the separate property of Mrs. Wallace, and that she held it sui juris, still it was competent for her, according to the facts stated in this record, to have made the sale of it to the defendant. In Coles vs. Trecothick, Lord Eldon holds, that a trustee may purchase from the cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee should buy; and there is no fraud, no concealment, no advantage taken by the trustee, of information acquired by him, in the character of trustee. If this property was the separate property of Mrs. Wallace, as is contended, by virtue of the appointment of the defendant as trustee, she was, as to this separate property, sui juris, and might have disposed of it to the defendant, in the absence of all fraud, concealment, or advantage, on his part. It is true, that Courts of Equity will look with a jealous eye to purchases made by trustees of their cestui que trusts, although the latter may be sui juris, but we are not prepared to hold that such purchases are absolutely void, per se. As to the bill of sale having been made in this case, to James E. Duncan, we have only to say, that it was so made with the knowledge and consent of the alleged cestui que trust. It is not a case in which the instrumentality of a third person is invoked, for the purpose of blinding or deceiving the cestui que trust, without her knowledge, to enable the trustee to acquire the title to the trust property.
According to the facts disclosed by the record before us, neither the law nor the justice of the case, is with the plaintiff in error. The whole effort appears to have been, in the Court below, to exclude the true facts of the case, by relying on the technical doctrine of estoppel, and by the operation of that rule, to make the defendant liable as a trustee for the separate property of Mrs. Wallace, which never was her separate property, but the property of her husband, and liable for the payment of his debts. In other words, after the parties had become satisfied it was not the separate property of Mrs. Wallace, she consented for the defendant to purchase it, and apply the purchase money in payment of her husband's debts, to which the property was subject, which he has done; and now she seeks to make him account for the property again to her, as her trustee, on the ground that he is estopped from denying that it is her separate property; not that it is in fact her separate property in law, but that the defendant cannot, by a technical rule, be permitted to deny it.
The defendant claimed title to the property by a bona fide purchase from Richard Wallace (in whom was vested the legal title) with the knowledge and consent of Mary Wallace, the alleged cestui que trust, she having joined her husband in making the bill of sale; so that in any view, the defendant has the legal title to the property; and in our judgment, from the record before us, the equitable title also. The Court below then, did not err in refusing the instructions asked, in view of the facts of this case, nor in the instructions given to the Jury. Although we might not be willing to indorse all the legal propositions asserted by the Court, without qualification; yet, so far as the same were applicable to the facts of this case, the plaintiff in error has no cause of complaint. From the view which we have taken of this cause, it follows that the bill of sale from Wallace and wife, to James E. Duncan, and from the latter to George M. Duncan, as well as the fi. fas. against Wm. Wallace in favor of his creditors, were competent testimony, and properly admitted in evidence. The receipt from Mary Wallace to the defendant as trustee, while acting as such, was properly admitted in evidence -- her handwriting having been first proved.
The evidence of Washington Poe, Esq. was also properly admitted, for the purpose of showing that the defendant acted in good faith in making the purchase of the negroes. It is true, that a party who acts on the advice of counsel in regard to his legal rights, must act on his own responsibility; yet, in this case the advice was in accordance with the legal rights of the parties, and the defendant did right in following it. A Court of Equity, as a general rule, will sanction that which it would decree to be done, had the parties been before it.
The copy of the will admitted in evidence, was attached as an exhibit to the complainant's bill, and admitted by the defendant's answer, and we think, was properly admitted in evidence to the Jury.
Let the judgment of the Court below be affirmed.
"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; from Macon, February term 1853, to Americus, July term 1853" ("Georgia Reports") Vol.13, by Thos. R.R. Cobb, pgs.41 to 44, Macon, February term 1853 (California State Law Library, Sacramento, 12/2003; MAD's extract)
WILLIAM G. WALLACE, plaintiff in error, vs. GEORGE M. DUNCAN, defendant in error; No. 6, Supreme Court of Georgia; 13 Ga. 41; February, 1853, Decided.
In Equity, in Dooly Superior Court.
William G. Wallace filed a bill of ne exeat against George M. Duncan, returnable to the May Term, 1852, of Dooly Superior Court, to restrain the said Duncan from removing certain negroes claimed by him in remainder. To the bill was attached the following affidavit: GEORGIA, DOOLY COUNTY: In person came before me, Joseph Sykes, a Justice of the Peace, in and for said County, William G. Wallace, who being duly sworn, saith that the facts stated in the foregoing bill are true so far as they depend upon his own knowledge, and so far as they depend upon the Information of others, he believes them to be true. Sworn to, and subscribed before me this the 15th day of November, 1851. WILLIAM G. WALLACE. JOSEPH SYKES, J. P.
At the October Term, 1852, of said Court, counsel for defendant moved to dismiss the bill, on the ground that the Court had no jurisdiction of the cause; the affidavit, not being such as the Statute requires. (reporter:) The Court suspended the motion and dismissed the bill, and counsel for complainant excepted.
(opinion) The only point in the case is, as to the sufficiency of the
affidavit, under the act of 1830, passed for the protection of the rights of remainder-men and reversioners in personal property.
The proper mode of proceeding under this Statute, is for the bill to contain the necessary allegations, as to the nature and description of the property, the complainant's title, &c., and all those issuable facts which may be contested, and if done successfully, upon the coming in of the decree to that effect, the bond originally taken, falls to the ground. And the affidavit should pursue substantially, if not literally, the terms of the Act.
Here the bill set forth the complainant's right to the propererty in dispute -- its value -- and that he entertains serious apprehensions that it will be removed beyond the limits of the State, and that his rights will be impaired unless adequate relief is afforded for their protection and preservation. Had the oath been sufficiently positive as to the truth of these charges, we should be inclined to sustain the proceeding, notwithstanding the omission to repeat these facts in the oath, in literal compliance with the provisions of the law.
But the question recurs, is the affidavit sufficiently positive? It is in the usual form of an oath appended to a bill in Equity: that the facts stated in the bill are true, so far as they depend upon the complainant's own knowledge; and so far as they depend upon the information of others, he believes them to be true. What portion of these facts depend upon the complainant's own knowledge, and what portion upon the information of others, does not appear. Suppose the whole depended upon the information of others, and such may be the case for anything in the affidavit to the contrary, it would not be contended that he would be entitled to the harsh remedy given by this Statute. It cannot be said that he swears even to his interest in the property. In bills at Common Law, to obtain a ne exeat upon equitable demands, certainty as to this point is necessary. They are analogized to cases of bail at Law, where the creditor must swear to his debt.
Suppose that Wallace was indicted for perjury upon this affidavit. Would it not be indispensably necessary for the State to show before a conviction could be had, that all the facts charged in the bill had not only not come to the knowledge of the affiant, but that he did not believe them upon the information of others. Such looseness was never intended to be sanctioned by the Legislature. ... Judgment affirmed.
Return to the Dooly Co. GA Research File
Return to Index to Duncan Research Files in Georgia
Return to The Genealogy Bug's Home Page