Compton v. Cassada

32 Ga. 428 | Ga. | 1861

By the Court.

Lyon,

J., delivering the opinion.

Pleasant M. Compton commenced an action for the recovery of lot of land No. 123, in the 8th district, second section of originally Cherokee, now Fannin county, against James M. Cassada, the tenant in possession, pending which, Cassada filed a bill in equity to enjoin said action for relief against the same, in which he alleged that Compton, one Russell Cannon and John Jones, granted this lot, with others, in partnership, the grant to which was taken out in the name of Compton. That subsequently, a division, by agreement, was had between the parners, and this lot, with another, fell to the share of John Jones, and Compton continued do hold the title thereto in his name, as naked trustee for the use of Jones, but agreed to make titles for said lot, to whomsoever he, Jones, might sell the same, and that Compton had written him (Jones) a letter, stating his willingness to make a title to him, or his assigns, as said lot belonged to him, Jones; that if Jones desired to sell said land, to do so at any time, and that he, Compton, would make a deed for the same to Jones, or his vendee. That the letter has been lost. The bill further alleges, that Jones, on the faith of this letter, which he exhibited, sold the lot to John Cassada for fifty dollars, and gave his bond for titles, which bond John Cassada transferred to James M. Cassada, the complainant, and Jones subsequently made his deed, and took up that bond. The bill asks for discovery from Compton, a perpetual injunction as to the action of ejectment, and that Compton be decreed to execute his deed to the complainants for the lot in controversy.

Compton, by his answer, denied that the lot, or any other,' was granted to him as a partner of Jones and Cannon, but that it was granted to him on an understanding with Cannon, that he was to have an interest, but that Jones was no party or privy to such understanding or agreement; that his name was unknown to him in that or any other connection until long afterwards; that Cannon had remitted to him all his interest or claim in this and all other lots; and that he, the complainant, became the exclusive owner of the equitable, as he was of the legal, title; that he never wrote to Jones any such letter as that stated in the bill; on the contrary, Jones had written him, proposing to purchase the land, and that he replied that he would convey the land on the payment to him of the sum of $160 00; that he has written no other, or to any other purport.

The parties, being thus at issue, went to trial on the equity cause, at the October Term, 1860, of Chrroll Superior Court. Complainant proved by E. W. Chastain that he heard nompton say that Jones and Cannon had furnished him with the number of this lot and others; that they were all interested, and he had authorized Jones to sell this lot, and would not sell it until he heard from Jones; by B.E. Chastain that he heard Compton say that Cannon and Jones furnished him with this number and others; that they were to have the lots on speculation, and that he had authorized Jones to sell this and the Neal lot; that defendant had gone into the possession, and made improvements on the lot. John B. Chastain proved that Compton told him that Jones and Cannon were to have an interest in the lot; that Jones had no right to sell the lot, he had paid nothing; Compton was to furnish money and grant the land, Jones and Cannon were to furnish numbers, and refund the money. Complainant proved further by Samuel Jones, the father of .John Jones, that he was acquainted with the handwriting of Compton, and had seen two letters from Compton to his son, John Jones, authorizing John Jones to sell the lot in controversy and another, at specific prices, which he does not recollect; the letter said nothing about a partnership in the lands that he recollects, though his son had told him that such a partnership did exist. The letters were lost while in his possession, or that of his wife, for safe keeping.

The complainant also put in evidence a quit-claim deed from John Jones to himself for this lot of land, dated 20th October, 1850.

1. On this evidence the jury rendered a decree for the complainant, and Compton moved for a new trial, on the ground, amongst others, that the finding was against the evidence and the weight of the evidence. The Court overruled the motion, and that is the only question brought here for review. Was the verdict against the evidence? We are clear that it was. The legal title to the lot was, as shown by the plat and grant dated in 1846, which was before the jury as evidence, in the defendant, Pleasant M. Compton, and nothing was shown to legally take that title, legal or equitable, out of him. There is no evidence to show title in Jones, or an interest even. It is true that the Chastains testify that Compton said that Jones had an interest in the lot, but titles to land can not be created by mere verbal declarations of this character without overturning the statute of frauds.

2. If it be said that Jones had authority to sell, the reply is, that he did not sell the lot as that of Compton’s, nor so convey; nor did he sell and qonvey the lot as Compton’s agent, but he sold and conveyed the land as his own. A sale so made by one, although he might haye power to sell for another, passes nothing but the title of himself, and not that of his principal. Had he attempted to convey as Comptc.n’s agent, his authority must have been shown, or better proven than it was, and that he had pursued his instructions.

3. The letters of Compton to Jones, as testified to by Samuel Jones, if such letters ever existed in fact, amount only to a limited authority to sell, and the witness’s recollection of the contents was too imperfect, and the evidence itself too uncertain, to form a basis for a title to land, so as to authorize the Court to act upon it, although the instructions might have been observed.

We think that the Court should have sustained the motion for a new trial, on the ground that the verdict was against the evidence. The complainant was not entitled to a decree on the case made.

We agree with the Court in refusing to charge as requested, there being no evidence to authorize it.

4. The motion for a continuance was properly refused. A party must not be delayed in a trial by the change of counsel or the neglect of the other party to attend to his cause.

Let the judgment be reversed.