HOUSTON CO. GA
COURT RECORDS part 2
 

"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.223 to 237, Macon, February term 1853 (California State Law Library, Sacramento, 12/2003; MAD's extract)
      L. M. WILEY, PARISH & Co., plaintiffs in error, vs. C. & G. H. KELSEY, defendants in error; No. 29, Supreme Court of Georgia; 13 Ga. 223; February, 1853, Decided.
      Motion, in Houston Superior Court, Term, 1852.
      At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co. obtained judgment against T. & S. Williams, for the sum of $1793.96 cts. principal. Execution issued therefor on the 18th day of May, 1839. The correct amount was inserted in the face of the execution, but on the back of it was for $753.96; the same entry was made on the execution docket. The only entry which appeared upon the execution, was a receipt in the handwriting of the late Judge Tracy, for $186.46 cts. but not signed by him, dated January 25th, 1850.
      At the October Term, 1846, and on the 28th day of the month, an order was obtained which recited that it appeared to the Court by the statement of the plaintiff's counsel, and on inspection of the record, that the original fi. fa. had been issued by the Clerk through mistake, for $753.96; instead of $1753.96 cts. and ordering that the said fi. fa. so erroneously issued, be cancelled and annulled and a new one for the correct amount be issued; and also directing the late Sheriff, George M. Duncan, to enter upon the new fi. fa. any levy or payment which may have been made upon the old one; and accordingly upon said fi. fa. George M. Duncan made several entries, the last of which was made some time about the 1st of January, 1840. At the October Term, 1846, of said Court, ... (MAD: see earlier case reported in Vol.10, Georgia Reports, pg.371)
      At April Term, 1851, of Houston Superior Court, counsel for Wiley, Parish & Co. moved a rule ni si against the Sheriff, to pay over the money in his hands to the fi. fa. in their favor, when counsel for C. & G. H. Kelsey & Halstead, Stoddard, Miller & Co., Hamilton, Houston & Co., Wright, Murphree and John Martin, judgment creditors of T. & S. Williams, made out and tendered an issue upon the said rule, and moved the Court to set aside the fi. fa. and the order and judgment of the Court passed at the October Term, 1846, authorizing said fi. fa. to be issued and cancelled, and annulled the original fi. fa. which was issued from the judgment between the said parties, at the April Term, 1839, upon the grounds: (MAD: not included here)
      The Court sustained the objection and rejected the evidence, upon the ground that the question made had been adjudicated by the Supreme Court, at Decatur, August Term, 1850; which decision was carried up and reversed by the Supreme Court, August Term, 1851, at Decatur; that Court holding and deciding, that the judgment establishing the "alias fi. fa. until it shall be reversed or impeached for fraud, is conclusive as to the subject-matter which it purports to decide."
      At the December adjourned Term, 1852, an issue of fraud was made up between Leroy M. Wiley, Parish & Co. plaintiffs in error, and C. & G. H. Kelsey & Halstead, and other judgment creditors, defendants in error, relative to the entries made upon the new or alias fi. fa. in favor of plaintiffs; and the following testimony of George M. Duncan, taken by deposition, relied on to establish the fraud. It was consented and agreed between the parties, that the issue should be referred to the decision of Judge Irwin, then and there presiding, and that he should pass upon all matters of fact, as well as of law.
      George M. Duncan swore, "that he was Sheriff of Houston County, in 1834-'5-'8-'9, 1842-'3, and Deputy Sheriff in 1836-'7, 1840-'1. That the annexed fi. fa. is the original fi fa. and was in his hands while Sheriff and Deputy Sheriff; that. there never was any other in his hands in favor of plaintiff, previous to 1846; witness never made any entry upon the fi. fa. To the cross interrogatories, he answered:
      "That, as Sheriff, he received money on said original fi. fa. previous to the distribution in 1840, and a distributive portion of which was paid over to Judge Tracy, plaintiff's attorney, in January, 1840. He heard nothing more of the fi. fa. until October, 1846. He did not pay to said fi. fa. all the money to which it was entitled, in consequence of a mistake made by the auditor, growing out of the error in backing the fi. fa. Witness placed certain entries on the alias fi. fa. In obedience to the order passed by the Court at that term; said entries were not made upon the same information witness now possessed.
      "Witness had the original fi. fa. in his hand at the time of the advertisement in the Georgia Telegraph newspaper, (in pursuance of which advertisement, the property of Williams, out of which was raised the money in controversy, was sold on the first Tuesday in October, 1839; said advertisement specifying that the property had been levied on by virtue of a fi. fa. in favor of George P. Cooper, and sundry other fi. fas. against the Williams'.) This was one of the other fi. fas. alluded to in said advertisement, and was considered as levied, though the entry was not made on the fi. fa. When the money arising from the sale of the property (specified in the advertisement) was brought into Court, there was some seven or eight fi. fas. claiming the money, and the Court referred the whole matter to Charles H. Rice, as auditor, to distribute it. He reported about twenty-two cents in the dollar, coming to each, and this one among them; and he paid the amount over to Judge Tracy, entered upon it. He kept an execution docket, but does not know where it is."
      Judge Irwin, after hearing argument, decided that the fi. fa. of Leroy M. Wiley, Parish & Co. was not entitled to participate in the fund, and ordered that the "alias fi. fa." and judgment on which it is founded, be set aside, on the ground that the order and judgment was fraudulently obtained.
      To which decision and judgment of the Court, counsel for L. M. Wiley, Parish & Co. excepted.
      (opinion) This is the fourth time the alias fi. fa. established by the judgment of the Superior Court of Houston County in 1846, has been before this Court. In Wiley et al. vs. Kelsey et al. (3 Kelly 274,) (MAD: 3 Ga. 274) it was held, that the execution was not dormant. In Wiley et al. vs. Kelsey et al. (9 Ga. 117,) it was held that the judgment of the Court rendered in 1846, establishing the alias fi. fa. in lieu of the original fi. fa. recited in such judgment to have been erroneously issued through mistake for the sum of $753.96, instead of the sum of $1753.96, as it appeared to the Court, by the statement of the plaintiff's counsel, and on inspection of the record, was conclusive as to the facts which it purported to decide, until reversed or set aside, and that such judgment could not be collaterally impeached, or set aside by evidence which that judgment declared to have been cancelled and annulled, to wit: the original fi. fa. which had been produced, and offered in evidence for that purpose. In Kelsey et al. vs. Wiley et al. (10 Ga. 371,) it was held, that the judgment rendered in 1846 might be directly attacked for fraud and collusion, upon a direct issue made and tendered for that purpose.
      Such an issue having been made and tendered by the parties interested in the fund raised by the sale of the property of the defendants in execution, at the December adjourned Term of the Court, 1852, the question of fraud, by consent of the parties in interest, was submitted to the decision of the Judge Irwin, who according to the agreement of the parties, was to pass his judgment upon all the matters of fact, as well as of law. After hearing the argument of counsel, Judge Irwin decided, that the alias execution which issued under the authority of the judgment of 1846, should be set aside, on the ground that the judgment so rendered was fraudulently obtained. To which judgment, the plaintiffs in error excepted, and now assign the same for error here.
      We distinctly recognize the position assumed by the defendants in error, that the Court is bound to indulge the same presumption in regard to the facts, as it regards granting a new trial in this case, as if it had been submitted to a Jury for their decision and verdict. If the record discloses evidence of fraud and collusion, in obtaining the judgment, or discloses such facts from which a Jury would have been authorized to have found by their verdict that the judgment of 1846 was fraudulently obtained; or if the evidence is in conflict in regard to that point, then a new trial ought not to be granted. But if, on an inspection of all the evidence contained in the record, there is no evidence of fraud and collusion, and no evidence from which fraud could have been fairly inferred by a Jury, in regard to obtaining the judgment in 1846, then a new trial should be granted.
      After the most careful examination of all the evidence contained in the record before us, we have not been able to find any evidence whatever which would authorize a Jury to have set aside and vacated the judgment of the Court rendered in 1846, for fraud; but on the contrary, the view which we take of the evidence submitted for that purpose, rebuts all presumption of fraud, in the rendition of that judgment.
      In the first place, we start with the legal proposition, that every thing is to be presumed in favor of the regularity and good faith with which this judgment of a Court of general jurisdiction was rendered.
      The only evidence offered to impeach it, is that of George M. Duncan, and the old fi. fa. which was cancelled by the judgment. Before we proceed to examine the evidence of Duncan in detail, we will first recur to the judgment of 1846; for if the court and the parties acted in good faith from the evidence before them, at the time the judgment was rendered, the subsequent development of new and additional facts, of which they were wholly ignorant, going to show that there was no mistake in the face of the old fi. fa., such new facts cannot be considered as an element of fraud, which will contaminate and avoid a judgment rendered upon evidence which was believed to have been true. There was not one title of evidence in the record that any body had knowledge, at the time of the rendition of the judgment establishing the alias fi. fa. that the original had issued for the correct amount on its face, when it was backed only for the sum of $753.96.
      The judgment recites, "that it appearing to the Court, by the statement of the plaintiff's counsel and an inspection of the record, that the Clerk of this Court, by mistake, issued execution upon the above stated judgment, for $753.96, instead of $1753.96, called for by said judgment, it is ordered, &c."
      The statement of the plaintiff's counsel was doubtless made to the Court as one of the officers thereof, on his professional oath, and the record which was inspected, it may fairly be presumed, was the execution docket, on which the Clerks most usually enter the amount of the principal, interest and costs, of the executions issued by them, from the amount which is entered on the back thereof. As we have already stated, there is not one particle of evidence that any human being knew at the time the judgment was rendered, that the old fi. fa. on its face, had been issued for the correct amount; but when we come to look into Duncan's testimony, it is made quite apparent, that all parties acted on the idea, that it had issued for the wrong amount, according to the indorsement on the back of it by the Clerk. After the alias fi. fa. has been issued several years under the judgment, and performing its appropriate functions, it is discovered that the old fi. fa. issued for the correct amount on its face, and that no entries had, in fact, ever been made upon it by the Sheriff. This old fi. fa. is attached to interrogatories, to be exhibited to Duncan, the former Sheriff, who swears "that he was Sheriff of Houston County for the years 1834-'5-'8-'9, 1842-'3, and Deputy Sheriff, for the years 1836-'7, 1840-'1. He identifies the fi. fa. as the genuine, original fi. fa.; that it was in his hands while Sheriff and Deputy Sheriff. There never was any other fi. fa. in his hands from the same judgment, previous to October, 1846, and did not know of any other fi. fa. issuing from the same judgment previous to that time; he never made any entries, either of levy or payment, on said fi. fa. On cross-examination he states, that he does not recollect to have had the fi. fa. in his hands since January, 1840; the fi. fa. was backed for $753.96, when the face of it called for $1753.96. As Sheriff and Deputy Sheriff, he did receive money on said fi. fa. previous to a distribution in January, 1840, which money, he paid to Edward D. Tracy, plaintiff's attorney, in January, 1850; heard nothing more of the fi. fa. until October, 1846. Witness did not pay to said fi. fa. all the money to which it was entitled, owing to an error made by the auditor, Charles H. Rice, to whom was referred the calculation upon the distribution of the funds on hand, among the several fi. fas., which error grew out of the error in backing the execution. He did place certain entries on the alias fi. fa. issued in October, 1846, which entries were then signed by him in obedience to an order of the Court passed at that time. Said entries were not made upon the same information I now possess. I then supposed said entries were on the annexed original fi. fa. it not being before me, and supposed to be lost. I had this fi. fa. in my hands at the time of the advertisement shown me in the Telegraph. Here the newspaper containing the advertisement of witness' Sheriff's sale for October, 1839, was exhibited to him. The advertisement recites that, on the first Tuesday in October, 1839, the property of the defendants in execution, T. & S. Williams, would be offered for sale, consisting of a stock of dry goods, and other property, levied on to satisfy fi. fa. in favor of George P. Cooper, and sundry other fi. fas. against T. & S. Williams. Witness says this old fi. fa. was one of the fi. fas. alluded to in the advertisement, and was considered as levied, though the entry was not made on it. When the money was brought into Court, there were a great many fi. fas. seven or eight, claiming the money, and the Court referred the whole matter to Charles H. Reid, as auditor, to distribute it; he reported about twenty-two cents in the dollar coming to each, and this among them, and I paid to Judge Tracy under that report, the amount entered on it. This fi. fa. would have received more, but was backed for $753.96, when it should have been $1753.96. I kept an execution docket part of the time, while Sheriff, but never entered his levies in it."
      The substance of the testimony is, that there was no entry made on the old fi. fa. by the Sheriff, prior to October, 1846; that it was in his hands to be levied on the defendant's property in time for the October sale in 1839, and was considered as levied thereon by him, though the entry of the levy was not made on the fi. fa.; that when the money arising from the sale of the defendants' property advertised to be sold, and which was sold on the first Tuesday in October, 1839, to satisfy sundry fi. fas. this one included among them was distributed, this fi. fa. received its pro rata share, considering the true amount of the fi. fa. only $753.96, which amount only, was paid over to the plaintiffs' attorney; that he made the entries on the alias fi. fa. under the order of the Court in 1846, but said entries were not made upon the same information he now has, for he then supposed said entries were on the original fi. fa. which was not before him, and supposed to have been lost.
      When the Court, in 1846, ordered the alias fi. fa. to be issued for the correct amount, it also ordered, "that George M. Duncan, late Sheriff, do enter upon said fi. fa. any levy, or payment, which may have been made or received on the execution erroneously issued as aforesaid;" that is to say, the Court, after hearing the evidence of Duncan, as to what entries had been made on the old fi. fa. by him, he was directed to make the same on the alias fi. fa., which he says he did, but the same were not made on the same information he now has, in regard to the old fi. fa.; at the time, he supposed the proper entries had been made on the old fi. fa. and did, as we are bound to presume from the judgment of the Court so testify before the Court in 1846. There can be no doubt, we think, that the Court in 1846, decided right, according to the evidence then before it, in regard to the issuing the alias fi. fa. and the entries which were directed to be made thereon; but if the judgment of the Court had been erroneous, the effect thereof would have been the same, until reversed or set aside.
      But it is said that it now appears, that judgment was rendered upon a statement of facts which were false; that the execution issued for the correct amount, and that there were no entries made on the old fi. fa. by the Sheriff. The conclusive answer to this argument is, that if the judgment has been obtained by the false testimony of a witness, the 8th section of the 8th division of the Penal Code points out the remedy. When the witness upon whose false testimony the judgment was obtained, shall be prosecuted and convicted of perjury, then the judgment may be set aside on that ground. There is no evidence in this record, that the Court, or the parties, knew that the testimony was false, before or at the time the judgment was rendered; that the Court, and the parties, and Duncan, were mistaken as to the amount specified in the face of the old execution, is quite certain, but it was an innocent mistake, arising from the fact that the Clerk had backed the execution for the wrong amount.
      The best evidence that the plaintiffs in the old fi. fa. were innocently and honestly mistaken, arises from the fact that they received less than one-half their pro rata share of the money, in the distribution of the proceeds of the sale of the defendant's property; instead of receiving their pro rata share of $1753.96, they only received their pro rata share of $753.96. What motive had they to make a fraudulent representation to the Court for the purpose of having the old execution set aside, and a new one issued, unless they believed it had issued for the wrong amount? That they did so believe, is most clearly manifested by the fact of their receiving less than half of the money which they were entitled to receive, had they known the execution had issued for the correct amount. We think it is also equally clear, that Duncan, the Sheriff, was honestly mistaken when he stated to the Court, that certain entries had been made on the old fi. fa. by him. When that statement was made by him in 1846, the old execution was not before him, and was supposed to be lost; he knew that he had levied on the defendants' property in time for October sale in 1839; he knew that this execution was in his hands -- that it was considered as levied on the defendants' property, and that it had drawn its pro rata share of the money arising from the sale thereof according to the amount indorsed on its back by the Clerk, and that he paid the same over to the plaintiffs' attorney. Knowing all these facts to be true, he supposed he had done his duty by making an entry of his levy on the execution, and then accounting for that levy, as he ought to have done, in accordance with the truth of the facts, as he details them in his evidence. The fi fa. of George P. Cooper, which is in this record, and under which, as well as the sundry other fi. fas. mentioned in the Sheriff's advertisement, the defendants' property was levied on, to be sold on the first Tuesday in October, 1839, has no levy entered on it by the Sheriff; and yet there can be no doubt that it was in fact levied, as well as the other sundry fi. fas. in his hands at that time, for the reason that the defendants' property was advertised to be sold under said fi. fas. and was sold under them; but the Sheriff failed to make an entry of what he had done, on the execution. When we examine the entries made on the alias fi. fa. in 1846, we find them to correspond substantially with the statements now made by him in regard to what was done with the old fi. fa. in August, 1839, the levy on the defendants' property is entered thereon; then there is an entry stating that on the first Tuesday in October, 1839, the house and lot was sold to Thomson for $1000.00, and the stock of goods sold from month to month until the first Tuesday in January, 1840; then follows an entry shewing the application of the money arising from the sale of the property, crediting that fi. fa. with $184.00, on the 25th January, 1840. Now, if the old fi. fa. had been before the Court in Oct. 1846, and it had appeared to the Court from its face, to have issued for the correct amount, and with the same statement of facts which Duncan now makes, the Court ought, and no doubt would, have ordered the same entries to have been made on that old fi. fa. which it ordered to be made on the alias fi. fa. for the simple reason, such entries correspond with the truth of the facts in the case. The fact of the levy of the old fi. fa. in 1839, in time for October sale, is established by the testimony of Duncan, but the levy, was not entered on the fi. fa. by him, at the time it was made. The fact of the advertisement and sale of defendants' property, to satisfy this old fi. fa. as well as others, is established by him, and the additional fact that this old fi. fa. received its pro rata share of the proceeds of the sale, according to the amount indorsed on its back, is also established by him; so that, according to the facts proved, the old fi. fa. was not dormant, but was active and busy, in the hands of the proper officer, in search of its legal rights, but unfortunately received less than one-half thereof, in the distribution of the money.
      There has been no fraud practised, that we can discover, upon anybody, nor any harm done to anybody by the judgment of the Court in 1846, establishing the alias fi. fa. and the entries thereon. The entries on the alias fi. fa. are precisely such as should have been made on the original, according to the true state of the facts, as disclosed by Duncan's testimony. The whole difficulty has grown out of the clerical error of the Clerk in backing the execution, and the omission of the Sheriff to make his entries thereon, according to the facts, as the same actually transpired, and not the improper conduct of the plaintiffs in the fi. fa. for they appear to have been diligent in the prosecution of their legal rights under their execution. The judgment of the Court in 1846, was rendered on evidence which the Court and the parties believed at that time to have been true, as is clearly apparent from all the testimony in the record, and there is no evidence whatever, going to show that the Court, the parties, or any one else, knew anything to the contrary, in October, 1846. The argument is, but for the entries made on the alias fi. fa. by the judgment of the Court in 1846, that fi. fa. would be dormant under the Statute; and inasmuch as there were no such entries on the original fi. fa. which would have taken it out of the operation of the Dormant Judgment Act, therefore, the judgment of 1846, was fraudulently obtained as against the defendants in error, who are junior judgment creditors. The answer to this argument is, that the old fi. fa. would not have been dormant, according to the evidence of Duncan, and the judgment of this Court, (in 3 Kelly 274,) and had it been before the Court in 1846, in the exact condition it now is, the Court would, as it ought to have done, (according to the truth of the facts, as now stated by Duncan,) ordered the same entries to have been made on the old fi. fa. which it ordered to be made on the alias fi. fa., so that the junior creditors are in no worse condition than they would have been, according to the true statement of the facts of the case, if the judgment of the Court in 1846, establishing the alias fi. fa. and the entries thereon, in lieu of the original, had never been rendered.
      The alias fi. fa. and the entries thereon exhibit the truth of the facts as the same transpired, according to the testimony of Duncan, as to what was done under the old fi. fa. and nothing else but the truth, and consequently, there was no fraud, either in law or fact, in obtaining the judgment of 1846, apparent on the face of this record.
      Let the judgment of the Court below be reversed.
 

"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 Georgia at Atlanta, in parts of July term 1872 and January term 1873" by Henry Jackson; Georgia Reports, Vol.47, pgs.445 to 452 (California State Law Library, Sacramento, 2/2004)
      C. C. DUNCAN, administrator, et al., plaintiffs in error, v. SALLIE POPE, by her next friend, defendant in error; Supreme Court of Georgia; 47 Ga. 445; July, 1872, Decided.
      Illegitimate child. Partition. Consideration. Escrow.
      Delivery. Exceptions. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.
      Sallie Pope, a minor, by her next friend, William Bishop, filed her bill containing substantially the following allegations: That she is the illegitimate child of James S. Pope, deceased, and so acknowledged by him to be; that her said father during life always treated complainant indulgently and kindly, and frequently openly averred his intention to give to complainant a large portion of his estate at his death, to supply her wants and to preserve her from suffering and poverty; that her said father was prevented from carrying into effect this often expressed intention by his sudden and unexpected death, which occurred in 1866; that said death was so sudden as to prevent the execution of a will; that her father left property to the value of $20,000.00, and the defendant, C. C. Duncan, was duly granted letters of administration upon said estate; that though complainant, under the law of Georgia, cannot inherit said property yet she is entitled to be supported, maintained and educated during the period of her minority out of the property of the estate of her said father; that she had applied to said Duncan to have said support set aside; that complainant and her mother had been placed by the said James S. Pope, during life, in possession of a certain house and lot in the city of Macon, and that complainant, by her tenant, is still in possession of said property; that in response to the application of complainant, Duncan made some indefinite promise to convey in fee simple to complainant said property, but would never execute any conveyance; that complainant placed the matter in the hands of Simmons & Bacon, attorneys at law, to secure her rights in the Courts; that upon being approached by complainant's said attorneys, said Duncan agreed to convey said property in trust for her, but postponed the execution of a deed for a few months, until the heirs of said Pope, deceased, should become of age; that subsequently to said arrangement complainant, by her attorneys, discovered that Stephen and A. P. Collins owned a two-sevenths interest in said property; that upon the representation of Duncan that said interest could be purchased for a trifling sum, complainant did not then repudiate the agreement; that complainant was not informed at the time of said negotiations that there was a bill pending in Houston Superior Court, filed by Stephen Collins and A. P Collins against the said C. C. Duncan, administrator, for the partition of said property, and for the recovery of the rent; that said Stephen Collins and said Duncan had had repeated conversations with complainant's solicitors in reference to the conveyance of said property to her, and had carefully concealed from her the pendency of the aforesaid litigation; that said Duncan and Stephen and A. P. Collins combining and confederating together for the purpose of defrauding complainant in the premises, at the last term of Houston Superior Court, entered into a consent decree that said house and lot be sold for partition, and that two-sevenths of the proceeds of said sale be paid to the said Stephen and A. P. Collins, and the sum of $125.00 for rent of said two-sevenths also to be paid out of the proceeds of sale; that under said decree, James Martin, sheriff of Bibb county, has levied upon and advertised said property for sale on Tuesday, the 5th day of April; that after the aforesaid decree had been taken, Duncan sent to complainant a quit claim deed to said property, signed by the heirs of her deceased father, at the same time communicating the facts as to said decree, which was the first information that complainant ever received that said bill was or had been pending; that the date to said deed is showed, and appears to have been changed from January 4th, 1870, to February 28th, 1870, so as to give effect to the same subsequent to the time of said consent decree; prayer, that defendants may be enjoined from further proceeding under said decree, or from transferring the same, or from conveying said property to any third person until the further order of the Court; that Duncan may be required to account with Stephen and A. P. Collins for whatever amount may be due them, and to convey said property to complainant free from any incumbrance or claim whatever, or that such sum of money be paid to the use of complainant as may be necessary for her support, maintenance and education during her minority.
      The joint answer of the defendants, Stephen and A. P. Collins, admitted most of the allegations of the bill, but denied that they had combined or confederated with Duncan to defraud complainant, and also alleged that in the entire transaction as to the house and lot they alone negotiated with Duncan, and had no connection whatever with complainant, regarding her as having no interest whatever in the property; prayer, that their answer may be considered as a cross-bill, and that two-sevenths of said house and lot be decreed to be the property of defendants, and that the same be sold for partition and defendants' share be paid to them, with rent from August 1st, 1866.
      The defendant, Duncan, answered the bill, substantially, as follows: that soon after the death of said Pope, a colored woman named Josephine, formerly the property of James Ralston, called on defendant, and represented that she had an illegitimate child by said Pope; that said Pope had promised to provide for said child, and she thought some provision ought to be made; that said child, who is complainant, was at that time six or seven years of age, and when born, was the property of James Ralston; that said woman represented to defendant that if he would give to her certain articles of personalty and the interest then owned by Mr. Pope's estate in the house and lot mentioned in complainant's bill, that it would be satisfactory to her and her child; that defendant consented to the arrangement and delivered to her the personalty, and authorized his agent to place her in possession of the house and lot, she agreeing to pay Messrs. S. and A. P. Collins their proportion of the rent, and, under no circumstances, to encumber the estate of said Pope with the payment of said rent; that at the time this agreement was entered into, it was well understood by said woman, Josephine, that Mr. Collins owned two-sevenths interest in said house and lot; that defendant refused to execute a deed, as administrator, but promised that the heirs of Pope should do so as soon as they attained to the age of twenty-one, no rent being charged against said Josephine in the meantime; that in accordance with instructions from said Josephine, defendant forwarded said deed, when executed, to Messrs. Bacon & Simmons, whom he understood to represent said woman and her said child; that in July, 1868, said A. P. and S. Collins filed their bill in equity in Houston Superior Court for partition of said premises and for rent, and at July term, 1870, a decree for partition was rendered, and also a decree for $125.00 for their proportion of the rent; that defendant always understood that Messrs. Bacon & Simmons represented the woman Josephine, as well as complainant; that Messrs. Bacon & Simmons received said deed with the understanding that it was to be in full of all claims against Pope's estate, but yet said attorneys still retain the deed and continue the case.
      The Court charged the jury as follows:
      "If the evidence satisfies you that Sallie Pope was the illegitimate child of J. S. Pope; that he had recognized and adopted her as his child, and had promised to provide for, support, maintain and educate her, such relationship and promise was good and binding on him and on his estate, it being alleged in the bill, admitted in the answer, and proven that Mr. Pope had no legitimate child and wife, and that he had promised to provide for this child, and the administrator having undertaken to carry out this promise, he is bound to do it in good faith. If you believe that the title executed to her by the administrator and the heirs of Mr. Pope was defective, and did not convey to the child the whole property according to the agreement and undertaking, then you may decree that the administrator make a good title to the whole lot, or you may decree that he pay to her the value of the lot as proven. You will take the case and decide it according to the law as I have given it to you and the evidence produced to you."
      The jury returned the following verdict: "We the jury find and decree, that C. C. Duncan, administrator of the estate of J. S. Pope, pay to William Bishop, next friend of Sallie Pope, the sum of $800.00, and that the said described property be sold by the sheriff of Bibb county for partition; that of the proceeds of said sale, two-sevenths shall be paid to A. P. and S. Collins for their interest in said property, and that said C. C. Duncan, administrator, shall pay to said A. P. and S. Collins the sum of $227.05 for rent of said two-sevenths of said property from the 1st day of August, 1866, to February 1st, 1872."
      The defendant, Duncan, moved for a new trial upon the following grounds, to-wit:
      1st. Because the verdict is contrary to the evidence.
      2d. Because the verdict is contrary to law and equity in this, that there was no evidence to sustain or show any contract between complainant and J. S. Pope, deceased, or with said C. C. Duncan, his administrator.
      3d. Because the Court erred in his said charge to the jury.
      The evidence is not incorporated as it is unnecessary to an understanding of the decision of the Court.
      Certain exceptions were filed to proceedings had subsequent to the trial by Messrs. S. and A. P. Collins, based upon facts which the Court refused to certify, and are, therefore, omitted.
      The motion for a new trial was overruled, and plaintiffs in error excepted and assign said ruling as error.
      [Opinion] MONTGOMERY, Judge. Section 1789 of the Revised Code announces that a father is bound to support his illegitimate child. If he voluntarily make a contract for its support, the obligation is a sufficient consideration to sustain it, and no doubt it may be so made as to bind his representatives. The law, however, does not extend the obligation to the latter, in the absence of any such contract. A mere statement by the father of his intention that the child is to be supported out of his estate after his death, does not amount to such a contract. If the father fail to support the child voluntarily, the law points out the mode by which he may be compelled to enter into a contract for its support: Code, 4664, et seq. The mode here provided necessarily contemplates proceedings against him (not against his representatives) by the officials whose duty it is to see that the child does not become chargeable to the county. The law nowhere provides for a suit in behalf of the bastard for such support, either against the father or his representatives, not founded on some contract. A husband is bound to support his wife: Code, 1747; a father, his legitimate child: Code, 1783. It has never been contended that the enunciation of these principles in the Code gave the wife or child the right to enforce the obligation by suit. Section 1789 of the Code gives no right not in existence before its adoption. The section is but the embodiment of the legal principle applicable to such cases, and which had, therefore, been of force.
      The heirs of the putative father in this case having made and delivered to the bastard a deed of all their interest in a piece of realty held by the ancestor in his lifetime, in common with another, of course their interest, and no more, passed by the conveyance, and entitles the grantee to a partition as between herself and the other tenant in common.
      But the administrator has no power to bind the estate by promising to extinguish the title of the other tenant in common for the benefit of the bastard. The obligation to support the bastard, as already shown, is a valid consideration to support a contract made by the father for that purpose. It will not support the promise of his administrator to do so.
      An escrow, ex vi termini, is a deed delivered to some third person, to be by him delivered to the grantee upon performance of some precedent condition by the grantee or another, or the happening of some event. If delivered to the grantee, or his agent, the delivery is complete, and the paper is not an escrow: Jordan v. Pollock, 14 Ga. 145; Wellborn v. Weaver, 17 Ga. 267; Code, 2651. It follows, that the delivery of the deed to Messrs. Simmons & Bacon, the attorneys of the bastard, carried the complete title in the property granted to the grantee divested of all parol conditions.
      On the hearing before this Court, the counsel for the administrator objected to the verdict and decree, upon the ground that the record showed that the administrator, the substantial defendant in the case, was not a resident of Bibb county, in which the action is brought, but of Houston, and should have been sued in the latter county. This objection was not made in the Court below, and this Court, being a Court for the correction of errors only, cannot now entertain it.
      Judgment affirmed, with the following direction: That so much of said decree as requires C. C. Duncan, as administrator of J. S. Pope, to pay to William Bishop, next friend of Sallie Pope, the sum of $800.00, be set aside, and that on the decree of the jury, judgment be entered up that the sheriff sell said land for partition, and that two-sevenths of the proceeds of such sale be paid to the defendants, Collins, and the remaining five-seventh to such person as the Court may appoint as trustee for Sallie Pope, and that C. C. Duncan, as administrator as aforesaid, pay to said S. and A. P. Collins the sum of $227.85 for rent of said two-sevenths of said property from the 1st day of August, 1866, to February 1st, 1872.
 

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