171 Ga. 866 | Ga. | 1930
Lead Opinion
(After stating the foregoing facts.)
Does the petition set forth a cause of action which, if proved,
It is next urged that the petition is demurrable because it does
The plaintiff claims title to the premises in dispute under possession of a tract of land known as the McCorkle place, of which the land in dispute is a part, in M. A. McCorkle and his vendee, T. N. Sumner, under bond for title from McCorkle, for more than 20 years prior to January 1, 1918. The plaintiff claims title under derivative conveyances under Sumner. In the view which we take it is unnecessary to determine whether the plaintiff showed a good prescriptive title in Sumner. This is so for the reason which we will now state. A link in the chain of title under which the plaintiff claims is a deed from Eich'ards, sheriff, to the Bank of Tallapoosa, dated January 1, 1918. The executor of
It is insisted by the defendant that the verdict amounts to a recovery by the plaintiff of the balance of the purchase-money due by the defendant under his purchase of the premises in dispute; and that no such recovery could be had by the plaintiff, for the reason that this claim had not been assigned to the plaintiff.
So if the defendant purchased the premises in dispute from the bank, then the plaintiff was entitled to a verdict for the premises in dispute, as the jury found, in the absence of proper pleading on the part of the defendant setting up his equitable rights. But the defendant contends that he did not purchase these premises from the bank, but that he bought them from W. W. Heaton personally, and that the balance of the purchase-money owed by him was due to Heaton and not to the bank. In these circumstances, and as the plaintiff failed to show legal title in himself, defendant insists that the plaintiff was not entitled to a verdict against him for the premises in dispute. On the issue whether the defendant bought from the Bank of Tallapoosa through Heaton, or from Heaton in his individual right, the evidence is conflicting; and this issue should have been submitted to the jury for solution, with instructions as to the effect of their finding one way or the other. But as Heaton was sworn as a witness in behalf of the plaintiff, and testified that this parol sale of this land was made by him for the bank and not in his own right, we shall not grant a new trial if Heaton will, within ten days from the filing of the remittitur in the court below, execute and deliver to the defendant his quitclaim deed to these premises and shall therein renounce all claim to the balance due by defendant on the purchase-money of this land; but if he fails to execute and file such deed with such renunciation, a new trial is granted.
The directed verdict found that there was due by the defendant on the purchase-money of this land, at the date of its rendition,
Judgment affirmed conditionally and with direction.
Rehearing
ON MOTION ROE REHEARING.
We correct the figures in the fifth headnote and the corresponding division of the opinion, so as to make the principal due at the time of the rendition of the verdict in this case the sum of $600, and the interest due at that time $495.20. The motion for rehearing is denied.