55 Ga. 288 | Ga. | 1875
The plaintiff alleges in his declaration that the defendant is indebted to him in the sum of $ 1,750 00, which sum he paid defendant under a contract for the purchase of certain described mill property in the county of Randolph, of which he took possession, and was afterwards turned out of the possession thereof by paramount title.
On the trial of the case the jury, under the charge of the court, found a verdict for the plaintiff for the sum of $1,728 29.
• When this case was before this court on a former occasion, (E. McDonald vs. H. O. Beall, 52d Georgia Reports, 576,) the plaintiff based his right to recover on the theory that having purchased the land of the defendant and paid for it, he was bound to make him a good title thereto, and as he h'ad been evicted from the possession of the land by a paramount title to that of the defendant, he had the right to treat the contract of purchase as rescinded, and to recover back the purchase money paid for the land. . The defendant in the court below demurred to the plaintiff’s declaration on the ground that the plaintiff had not alleged that the defendant had covenanted to warrant the title to the land. The court below overruled the defendant’s demurrer, and this court affirmed its judgment, for the reason that the plaintiff might show by evidence at the trial such fraudulent representations by the defendant'as to his title, or such fraudulent conduct in relation thereto as would entitle the plaintiff’ to recover back the purchase money independently of any covenant of warranty of title to the land. On the former hearing of the case it was held and decided'that under the evidence contained in the record then before it, the plaintiff had failed to show an eviction by paramount title to that-of the defendant, and on that ground, this court reversed the judgment and ordered a new trial.
It appears from the evidence in the record of the last trial, that in 1865, O. P. Beall, the father of the plaintiff, purchased the mill property from the executors of James Morris, deceased, the defendant being equally interested in the purchase thereof, took their bond for title, paid $1,000 00 for his half of the mill property, and the defendant paid $1,000 00 for his half of it.. On the 15th of November, 1866, the executors of Morris made a deed to the defendant of one undivided half of the mill property, the witness, O. P. Beall, could not state whether defendant ever saw or knew of the deed to him. O.
The plaintiff testified in his own behalf, that for a debt due to him by his father, O. P. Beall, he bought a half interest in the mill property from him, and went into the possession thereof, with the understanding that his father held a bond for title from the executors of Morris, and that he would not take a title from his father, O. P. Beall, but that his title was to be made to him from the executors; that after plaintiff had bought his father’s half of the mill property, he proposed to defendant to sell, or buy his interest in it; defendant preferred to sell, and offered to take the $1,000 00 he had paid to the executors, and what heh ad expended in repairs, and which was due him by Beall & McDonald; defendant, on looking at his books, thought the amount would be about $1,750 00; that there might be a few small items not entered; plaintiff agreed to pay defendant that amount, he stating that he could not tell the exact sum ; the payments to be made in installments of $100 00 per month, until the whole amount- was paid, which has been done. There was nothing said about a title to the property between plaintiff and defendant; took no deed* or other obligation in writing of any kind; never called on defendant for a deed, or title at any time. This is the version given of the trade by the plaintiff himself. The plaintiff, or his father, has been in possession of the property all the time, the latter claiming now to be in possession under a contract made with Smith, (he purchaser at the marshal’s sale under an execution against the executors of Morris. The plaintiff read in evidence an execution from the district court of the United States, in favor of Davenport, against the executors of James Morris, issued on a judgment obtained on the 1st of May 1868, against them, which had been levied on the mill property, as the property of James Morris, deceased, which property, with other property levied on at the same time, was all sold for the sum of $700 00 and purchased by Smith, on the 6th of December, 1870. The judgment against the ex
In this view of the case under the evidence disclosed in the record, as well as for the numerous errors committed by the court on the trial, we reverse the judgment.
Let the judgment of the court below be reversed.