93 Ga. 639 | Ga. | 1894
An action was brought by M. M. and C. C. Phillips against Cooper upon a non-negotiable promissory note made and delivered by the latter to one Austin, who indorsed the same to the plaintiffs. Among other things, Cooper pleaded that the note sued on was assigned by Austin to the plaintiffs only as collateral security for a
Cooper further pleaded that the consideration of the note had totally failed, because it was given by him to Austin, together with other notes, for the purchase of a lot of land, Austin making to Cooper a warranty deed -thereto; that Cooper went into possession of the land under this deed, but had been in possession only a short time when an action of ejectment was brought against him and Austin by one Buchanan, after which the land trade between Cooper and Austin was rescinded, Cooper delivering up his deed and surrendering possessioh of the land to Austin, while the latter returned to Cooper all his notes except the one now sued on, which note he promised to get from the plaintiffs and surrender to Cooper, but had failed to do so; that afterwards, Buchanan and others brought another action of ejectment against Austin, Cooper, and one Hosford, seeking to recover the land, to which action pleas of the general issue and prescription were filed by all the defendants, including Austin; but before the case was finally determined, Austin died insolvent, no parties were made in his stead, and the suit was then dismissed as to Austin; whereupon Cooper consented that a verdict for the land might be taken as against him.
There was no evidence whatever to sustain the allegations in Cooper’s plea that the land trade between himself and Austin was rescinded, or that the papers relating to that trade were mutually returned, and the land surrendered to Austin; nor does it distinctly appear what disposition was made of the first action of ejectment above mentioned, although it is really immaterial what did become of it. This branch of the defence,