7 Ga. 228 | Ga. | 1849
By the Court. —
delivering the opinion.
Martin filed his bill against Atkinson, alleging that he purchased of defendant a tract of land in Pike County, for which he gave him a lot in Dooly, No. 247, 2d District, and his notes for $500 ; that he took a bond for titles, and' went into possession; that shortly thereafter an execution against Atkinson was levied on the land, whereupon he applied to have the contract rescinded ; but upon being assured by the vendor, that the incumbrance
The original answer substantially admitted all the charges in the bill, except as to the agreement respecting the improvements. Afterwards, the defendant having obtained leave, amended his answer, and denied that the transfer of the Dooly land constituted any part of the price given for the tract in Pike; but stated that it was conveyed on other and distinct considerations altogether.
Ancient boundaries, corners and station trees cannot, generally, be established otherwise than by reputation. Hence, this species of evidence is admissible for this purpose, from the necessity of the case. 2 Pitt. 159. But this case does not fall within the rule. There was obviously higher and better evidence of the identity of the land in the power of the party, and therefore, that tendered was properly rejected. 12 Vermt. 178. 24 Pick. 71. 5 Watts & Serg. 60. 1 Strobhart, 246.
These pleadings present rather a novel question, which we will forbear to discuss, inasmuch as it is unnecessary to do so. The original answer admits, distinctly, that the lot of land in Dooly made a part of the price of the Pike tract. The amended answer expressly denies that it did, and states that the previous acknowledgment was made by mistake. Which is the answer of the defendant ? Both, or the latter as amended 1 May the last statement be discredited by the first ? Or does it still require two wit
After the testimony had closed, the Court charged the Jury, in substance, that the contract between Martin and Atkinson was still subsisting, and that'they might set off against the notes which he gave for the land, the amount of injury he had sustained; intimating that if he had bought the land from Neal for less than he was to pay Atkinson, that he was not damaged.
Judgment reversed.