73 Ga. 670 | Ga. | 1884
The complainant exhibited his bill against the respondent, to compel the specific performance of a contract to sell and convey to him, upon certain conditions specified in a written agreement entered into between the respondent and one Gross, the right to the minerals on lot of land number 288, in the---district and —■ section of Dade county, together with certain easements and privileges relative to the mining of said minerals, and which contract had been assigned by Gross to complainant, as he alleges, with the full approbation and consent of defendant. He sets forth that he had fully complied with the conditions entitling him to a conveyance of these minerals and the rights and easements connected with the mining and appropriation of the same. The defendant admitted the contract with Gross and the assignment of the same to complainant, but denied that he had performed the conditions upon which he was entitled to the conveyance demanded. On the contrary, he insisted that he was compelled to reduce his claims against Gross to judgment; that the judgment was stayed by complainant’s becoming secu
It seems that the deed from defendant to Gross was not recorded until after the levy, and it is insisted for this reason, that the sale thereunder was invalid and of no effect; that it did not change the relations previously existing between the parties to the contract, and left them in the same position towards each other as they were before it took place. Complainant further alleged that defendant purchased the land at the sheriff’s sale at his instance and in pursuance of an arrangement with him. This the defendant denies; he says that complainant endeavored to affect such an arrangement with him, but he declined. Besides this mineral interest, two other lots of land, numbers 156 and 157, in an adjoining district and section were conveyed by the sheriff, in pursuance of this sale, to the defendant. The defendant insists that he subsequently sold and conveyed these two lots to the complainant, at an advance of two hundred dollars upon his bid for them and the mineral interest; that the sheriff’s sale put an end to complainant’s rights under the contract with Gross, and that the contract by which complainant acquired titles to the two lots was independent of the former, and had no connection whatever therewith. Complainant asserts directly the contrary, and claims that he paid the entire amount contracted to be paid for these two lots of land
It is insisted that as this request covered various questions, and as the exception to it was general and not specific, it- cannot be considered by this court, under its former rulings and practice; that the general charge of the court is not brought up in the record, and it must be presumed, in the absence of objections, that it was correct and laid down all the law applicable to the case as made. Generally this is true; but it would be going too far to entertain such a presumption, where the request refused and that given directly contravene, and are wholly inconsistent with it. To specify the decisions complained of was to point out plainly the errors alleged to exist therein; they were either wholly right or wholly wrong; each of them dealt with a single principle broadly laid down, without qualification or condition.
There is no controversy between these parties, as to any
The precise rule upon this subject was laid down in Scott vs. Haddock, 11 Ga. 258, 264. After quoting and adopting the decision in Zeller’s, Lessee vs. Eckert et al., 4 Howard R., 296, and disapproving the charge of the lower court, “ that it was incumbent on the trustee to have given notice to the cestuis que trust that he held and claimed, the trust property adversely to their title,” this court maintained the doctrine declared in the case they cited, that the statute of limitations does not begin to run until the possession of the trustee — before consistent with the title of the true owner — becomes adverse, tortious and wrongful by the disloyal acts of the trustee, which must be open, continuous and notorious, so as to preclude all doubt as to the character of the holding of the property, or the want of knowledge on the part of the cestuis que trust.” Though the defendant in this case was never a technical trustee for the complainant as to the interest in dispute, yet he did sustain to him and the property such a confidential relation as practically made him a trustee. If the defendant is right in his version of their dealings, if the complainant consented to the sale of this property by the sheriff, or if, after its sale, he purchased and took from the defendant a portion of the property thus sold by the sheriff, and left the defendant in the possession of the mineral interest after that time, then he surely had knowledge of the defendant’s adverse holding of the same from that time, and if the statutory period under this holding had elapsed before the institution of this suit, the complainant’s remedy is barred. These several issues of fact should be separately and distinctly submitted to the jury ; and the decree rendered should be in accordance with their finding. Inasmuch as these material issues were not submitted, we think this case should be remanded for another hearing.
Judgment reversed.