Martin v. Walker

102 Ga. 72 | Ga. | 1897

Little, J.

We find but little to add to the headnotes in this case. The defendant sought to set up an equity against the legal title of the testator. He was in possession of a part of a mutilated bond for titles. There was sufficient in it to show that the plaintiff’s testator had executed such bond, taking therefor certain promissory notes; that the notes were given as-part purchase-money for the lot of land, and the bond for titles was an obligation of the testator to make titles upon the payment of the notes. There was evidence that these papers had come into the hands of the defendant in due course of trade and for a valuable consideration. Inasmuch as the defendant based his right upon a perfect equity, that is to say, the payment of' the purchase-money for the land, the portion of the bond for titles which he held and these promissory notes were relevant testimony in his favor, as going to show to the jury, in connection with other evidence submitted, that he had paid the sum stipulated in the notes. It is no objection to the admissibility of the bond for titles that it appeared to have been executed by an agent of the obligor. It was, under other tes--» timony, admissible without proof of the authority of the agent,. or the fact of execution by him, because the evidence of at least one witness tends to show that the testator was present in person conducting negotiations in reference to the trade, thus recognizing the bond for titles as his own. If the jury believed these facts to be true, then the testator was estopped to deny the genuineness and, binding force of such bond. In any event, the portion of the bond which was offered and the promissory notes were legitimate evidence to go to the jury, with the explanatory evidence offered by the defendant, without any proof of execution of either. The case of the defendant rests, not upon legal title, but upon an equitable right to the property as against the claim of the plaintiff. Whether such equity existed or not was for the jury to determine, and these papers were proper evidence to be considered by them in determining the question. There is ample evidence in the record to support the verdict. The court therefore did not err in refusing to grant a new trial.

Judgment affirmed.

All the Justices concurring.