9 S.E.2d 749 | Ga. | 1940
1. If a plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit will be granted. Code, § 110-310.
2. The petition being based on the theory that a conveyance absolute on its face, wherein the plaintiffs' intestate was grantor, and one of the defendants the grantee, was in reality a mere security deed, and that the indebtedness had been paid, so as to reinvest the legal title in the plaintiffs' intestate, the burden was in all events on the plaintiffs to make it affirmatively appear that the indebtedness had been paid.
3. Declarations of the grantor, then in possession, but since deceased, tending to show payments by him to the grantee, are mere hearsay, and as such have no probative value. Eastlick
v. Southern Ry. Co.,
4. The rule that when a plaintiff is entitled to recover for detention of his land, the defendant is liable, not merely for what he realized in the way of rents or profits, but its actual fair rental value, has no application to a mortgagee or holder of a security deed, admitted into possession. In the latter case, he is held accountable only for the profits actually received, where ordinary diligence is exercised. Powell on Actions for Land, § 419; Page v. Blackshear,
5. If a grantee sells and conveys property to a third person who takes without notice of an outstanding equity, the purchaser, as against the original grantor, his personal representative or his heirs at law, will acquire the legal title unaffected by such equity. Copelin v. Williams,
6. "The neglect of a party excepting to an auditor's report on matters of fact, or on matters of law dependent for their decision upon the evidence, to set forth, in connection with each exception of law or of fact, the evidence necessary to be considered in passing thereon, or to point out the same by appropriate reference, or to attach as exhibits to his exceptions those portions of the evidence relied on to support the exceptions, is a sufficient reason, in an equity case, for refusing to approve the exceptions of fact and for overruling the exceptions of law." Smith v. Wilkinson,
7. Applying the foregoing rulings to the instant record, no error appears in the judgment overruling the exceptions to the report of the auditor, and in approving his report granting a nonsuit and dismissing the case.
Judgment affirmed. All the Justicesconcur.
The defendants filed answers. Houston averred: "David Hobbs [the deceased] stated that if defendant Holley would pay certain of his debts and make him advances of money and protect the property against his debts existing against it, and against the said Hobbs, which were then and there agreed upon and estimated to be $1200 in addition to the debt to Sylvester Banking Company, above mentioned, that said Hobbs would give said defendant [Holley] a deed to the property. On this consideration and agreement made then and there between said defendant and said Hobbs, said defendant received an absolute deed to said property for the purpose of protecting him in paying the indebtedness and advances for said Hobbs, with the privilege to said Hobbs to redeem the property; said defendant agreeing to resell it and reconvey it upon the repaying of said amounts of money paid out, or to be paid out, for the deed; provided this option to redeem should be exercised within a reasonable time thereafter; and this option was never exercised; and nothing ever done toward the exercise thereof by the said Hobbs, or by any one for him." He denied that he colluded with Holley, and that he was guilty of any fraud in the procurement of his deed. Holley made similar admissions as to the transaction between himself and Hobbs, but denied all other material allegations, such as that petitioners were in possession of the property when they filed their action or when Holley made his conveyance to Houston.
The case was referred to an auditor, who, after hearing the evidence given by the plaintiffs' witnesses, rendered his report finding in favor of a motion for a nonsuit. Exceptions of fact and of law were filed by the plaintiffs. They were overruled, and the auditor's finding was affirmed. The petitioners excepted.