185 Ga. 805 | Ga. | 1938
On January 22, 1934, Mrs. Lilly Cooper borrowed $200 from Miss Carrie Farr, securing the same by a deed to secure debt on a described tract of land in DeKalb County, Geor
The original petition did not refer to the security deed or to the deed made by Miss Farr as attorney in fact; but after Peevy had filed his answer, the plaintiffs amended their petition by setting forth the execution of these instruments, and alleging that the deed obtained by Peevy at the sale under power was fraudulent and void, for the reason that at this sale the defendant was at first the highest and best bidder for $1000, but that he failed to com
The plaintiffs sued as heirs at law of Mrs. Cooper. They sought cancellation of two deeds, one being a deed made by the
With reference to the deed made directly to the defendant by Mrs. Cooper, after the foreclosure sale, suffice it to say, this deed can not be canceled at the instance of the plaintiffs unless the deed made by the attorney in fact may also be canceled. So long as the latter deed remains in force, the defendant’s title is complete as against the plaintiffs; and consequently the plaintiffs have no such interest in the land as would entitle them to cancel the deed made by their mother, notwithstanding it might otherwise have been subject to cancellation for insanity of the grantor. Bowman v. Chapman, 179 Ga. 49 (4) (175 S. E. 241); Gray v. Federal Land Bank of Columbia, 182 Ga. 894 (187 S. E. 104). It follows that the court did not err in directing the verdict in favor of the defendant. In the brief for the plaintiffs it is stated that the question of restitution was mentioned for the first time by counsel for the defendants in error in the brief filed in this court. The question was in the case, however, and for aught that appears may have been the ground upon which the judge directed the verdict for the defendant. As to this matter, the circumstances are different from those in Hall v. Butler, 148 Ga. 812 (98 S. E. 549).
A new trial was not required, as a matter of law, on the ground of newly discovered evidence. This ground was based upon an affidavit by C. J. Camp, declaring that for a consideration paid by the defendant he had colluded with the defendant to depress the sale. 'Besides what appears by the affidavit itself as to the character of the affiant, the defendant introduced in rebuttal the affidavits of two persons who testified that they were acquainted with the general reputation of Camp, and that they would not believe him on oath. In these circumstances the judge did not abuse his discretion in refusing to grant a new trial upon the ground relating to the alleged newly discovered evidence. City & Suburban Railway v. Findley, 76 Ga. 311 (2); Ivey v. State, 154 Ga. 63 (7) (113 S. E. 175); Williams v. State, 174 Ga. 174 (162 S. E. 377). Furthermore, even if this evidence were introduced, it