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Phillips vs. The State of Georgia.

and, slightly fastened as it was, might have been entered by any one who chanced to pass from the time it was left until one o'clock the next day, when the prosecutor returned to it and found his goods missing. What bears upon the prisoner is that the quilts were found in his house. That is the criminating fact against him. But then they were taken in March and not found till July. That tends to lessen the force of the possession, though, perhaps, considering the nature of the property, its force is not wholly destroyed. Quilts are articles that would be slow to circulate, and in regard to such articles, the possession, to raise a presumption of guilt, need not be so recent as where the property is of a more current kind: 3 Greenleaf's Ev., sec. 32; 1 Phillips' Ev. Cowen & Hill's Notes, 425, note 325. But let it be conceded that the onus was cast upon the prisoner to vindicate his possession. He did so by proving by one witness how he acquired it, and by several others that he was a man of good character. In the note above cited from Cowen & Hill, it is said, on page 427, that the better opinion seems to be, that the presumption arising from possession alone is completely removed by the good character alone of the prisoner. Certainly good character, together with the testimony of an unimpeached, uncontradicted witness, ought to remove it. It does not appear that the prisoner denied his possession or refused to account for it, or gave any false or contradictory account. The transaction with Jones, as explained by the witness, partook of the nature of both pledge and sale, and when the prisoner said that he bought the quilts from Jones, he stated nothing inconsistent with it. If the prosecution had been for receiving stolen goods, knowing them to be stolen, the conviction might not have been improper, inasmuch as Jones' possession most probably appeared more than suspicious, and the value of the goods was so much above the amount the prisoner gave for them. But in respect to the offense of burglary, there is some doubt, upon the authorities, whether the possession of goods stolen from the building will, of itself, even when recent and unexplained, so identify the prisoner as to justify a

Sims vs. Crawford.

conviction : 1 Whar. Cr. L., section 729; 1 Parker's C. C., 447; Burrell on Cir. Ev., 455–6; Cowen & Hill's Notes, 432, note 329. It is not clear, upon principle, why it should not, as the perpetrator of arson may be identified by such means, (3 Greenleaf's Ev., section 56,) and as there is a general presumption that the fruits of a crime are with the criminal: 1 Greenleaf's Ev., section 34; 3 Ibid., section 31. As to larceny from the house, see 24 Georgia Reports, 32. Upon this question we, at present, decide nothing. What we rule is, that, with the showing made by the prisoner, he was improperly convicted—the verdict was contrary to the evidence, and the court should, on that ground, have granted a new trial,

We advert to the newly discovered evidence only for the purpose of remarking that we are unable to see why full diligence would not have found it out in ample time for the trial.

Judgment reversed.

WILLIAM G. SIMs, plaintiff in error, vs. SHADRACK T.

CRAWFORD, executor, defendant in error.

An executor exposed lands of testator to sale; a bidder purchased the same

and gave his notes therefor, secured by mortgage on the land, Suit was brought on the notes. Defendant pleaded that by a parol agreement made before the sale, one-half the notes were not to be paid at maturity, but pay. ment was to be delayed till certain children arrived at age, which had no: happened ; that he had paid part of the purchase money, and when he paid it this understanding was renewed by the executor; that they did not put this agreement in the writing because both parties thought it would be good without doing so, the notes being written as intended, and he prayed that his money be refunded and the executor take back the land. The plea was

demurred to and stricken : Held, that there is no equity in this plea, and that it was properly stricken:

Code, sections 2757, 3800.

Pleadings. Vendor and purchaser. Contracts. Before Judge CLARK. Schley Superior Court. October Term, 1875.

Sims vs. Crawford.

Reported in the opinion.
HAWKINS & HAWKINS, for plaintiff in error.

John R. WORRILL; B. B. HINTON; GUERRY & Son, for defendant.

JACKSON, Judge.

At the October term of Schley superior court, Crawford, executor of William Ross, brought suit against Sims on two promissory notes for $1,736 66 each, secured by mortgage on the lands for which they were given. To •this action Sims, among other things, pleaded an alleged equitable plea to this effect: That the lands were sold in 1870, at public outcry, by Crawford, as executor, and bid off by defendant; that before the sale, Crawford agreed with him to let him have the lands for $5,200 00, with this understanding, that the proceeds were to go to Crawford's wife and Ross' children, half and half; that if defendant would bid off the land at that price and pay him the amount due to the Ross children, the other half should remain unpaid till certain Lawson children were twenty-one years old, to whom Mrs. Crawford intended to give her half; that these children are still minors; that this agreement was left out of the writings because they all thought it would be carried out; that he paid at one time one-third and then $500 00, which Crawford received and repeated the same assurances; and then the plea prays for a rescission of the contract, and that Crawford take the land back and pay defendant back the money he had received.

This plea was demurred to as having no equity in it; it was stricken, and this is the error assigned. We agree that there is no equity in the plea. It is a naked effort to change a written contract by parol evidence to contradict the written trade, and this without any allegation of fraud or mistake in writing what was intended to be written. It has been ruled again and again that this cannot be done: Code, sections 3800, 2757; 36 Georgia Reports, 451.

Judgment affirmed.

Johnson & Smith vs. Wheelock,

JOHNSON & SMITH, plaintiffs in error, vs. A. D. WHEELOCK,

defendant in error.

The title upon which claimants relied being made as part of a usurious con

tract, was void, and the property claimed was therefore properly found subject.

Claims. Deeds. Usury. Before Judge Kiddoo. Terrell Superior Court. November Term, 1875.

Reported in the decision.

IRVIN & GRESHAM, for plaintiffs in error.

A. HOOD; HOYLE & SIMMONS, for defendant.

WARNER, Chief Justice.

This was a claim case, on the trial of which in the court below, the jury, under the charge of the court, found the property subject to the execution levied thereon. The claimants made a motion for a new trial on the ground that the verdict was contrary to the evidence, contrary to law, and for alleged error in the charge of the court; which motion was overruled, and the claimants excepted.

It appears from the evidence in the record that Wheelock, the plaintiff in fi. fa., obtained a judgment in Terrell superior court, at the November term, 1874, against Lee & Fulton, on two promissory notes, dated 15th of April, 1873, which fi. fa. was levied on certain described lots of land and other property, on the 6th of April, 1875, as the property of Lee & Fulton, which was claimed by Johnson & Smith. The claimants claimed the property under a deed maile by Lee & Fulton to them, dated 12th of December, 1872, and recorded 7th January, 1873, and a deed from Lee to them, dated 13th December, 1872, and recorded 7th January, 1873, and also under another deed made by Lee & Fulton, conveying the property to the claimants, dated 20th December, 1872, and recorded 6th of January, 1873. The deeds conveyed an abso

Johnson & Smith vs. Wheelock.

lute warranty title to the property levied on to the claimants. The plaintiff's judgment against Lee & Fulton, the defendants, was of younger date than the deeds to the claimants, and the plaintiff sought to subject the property in satisfaction thereof, on the ground that the conveyance of the property was fraudulent in law as against creditors, under the provisions of the 1952d section of the Code, and because the title to the property was void, being made as a part of an usurious contract. The evidence shows that the deeds conveying the property were executed by Lee & Fulton to the claimants to secure them for their indebtedness to the claimants for goods purchased of them from time to time; the claimants did not go into the possession of any of the property uutil the fall of 1874, or January, 1875; the defenılants, Lee & Fulton, after the deeds were made, used the property conveyed just as they did before; the property described in the deeds, was to be conveyed back to Lee & Fulton when their indebtedness to the claimants was paid. It is quite clear from the evidence in the record that the claimants charged the defendants, Lee & Fulton, at the rate of one and a half or two per cent. a month on balances due by them on their accounts; the exact amount of usury paid, does not appear; one witness states that he does not think it was as much as $5,000 00, but there is no doubt that the rate of interest paid on the indebtedness which the deeds were given to secure, was more than seven per cent., the legal rate of interest. One of the claimants testified, that in a settlement made with Lee & Fulton in January, 1875, $6,224 00 was deducted from their account, which was more than the amount of usury that had been charged up against them. The law of force in this state at the time the deeds were executed by Lee & Fulton to the claimants, and which is now of force, declares that“ All titles to property made as a part of an usurious contract, or to evade the laws against usury are void.” See Sugart vs. Mays, 54 Georgia Reports, 554, and Carswell vs. Hartridge, 55 Ibid., 412. In this case, there was no equitable plea filed by the claimants alleging that their deeds were intended to be an

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