By the Court.
Lumpkin, J.delivering the opinion.
We think the whole of the answer of John C. Haralson? to the second interrogatory propounded to him should have been read to the jury.
The defendant, Watts, pleads payment to the notes sued on. And to support this defence, he undertakes to show, *493that the consideration of the deed which he gave to Hopkins was these notes, instead of $2,700, the consideration stated upon the face of the deed. This then, makes it necessary to enquire for what purpose the deed was given ? And the testimony of Haralson, was offered for that purpose. It does not contradict or vary the deed. It is consistent with it.
Mr. Watts, in writing to Hopkins, after considering the several plans which had occurred to him for arranging the debt which he owed to Hopkins, and repudiating distinctly, as he does, the giving of a mortgage, comes to the conclusion, “ to make a bona fide deed to the property, and leave you,” (Hopkins) “to do as you please with the matter, having the utmost confidence in your honesty and friendship for me and my family.”
An absolute deed was made in conformity with this suggestion. What was the effect of it ? To constitute Hopkins the trustee of his debtor, with a discretionary power to dispose of this property as he pleases, either to himself or to any body else. Of course, in doing so, due regard must be had to the interest of Watts. And the testimony of Haralson, Avhich was rejected, is in perfect consistency with the construction which the law puts upon this transaction.
If Hopkins took the property in payment of his debt only, why was Watts permitted to remain in possession of it, even down to the present time? And why were the notes not given up, as it was agreed should be done, if Hopkins determined to take the property as payment ? On the contrary, he held them from February, 1855, when the deed was made, up to August, 1857, when the suit was brought. And it is then, for the first time, that we hear of the defence, that the discharge of the notes, was the consideration for the deed. It may be so. And if, after hearing all the proof, the jury should so find, it is their privilege to do so. Still, the whole of the testimony, we think, should be let in.
Judgment reversed.