79 Ga. 482 | Ga. | 1888
It appears from the record in this case that in 1868, Cherry obtained an execution against Merrick Barnes, and had the same levied upon the house and lot in Albany known as the Barnes House. Barnes was unable to pay the money on said fi.fa., and induced one Jackson to bid off the property at the sheriff’s sale, and made a verbal agreement with Jackson that he would repay him the money which Jackson had paid to the sheriff, with a certain agreed sum as interest thereon, Jackson agreeing to make Barnes a deed to the property when this money and interest was paid. Jackson bid off the property, and the sheriff made him a deed thereto. He allowed Barnes to remain in possession of the property, and to pay him the agreed rate of interest from year to year.
In 1871, Jackson needing his money, and Barnes being unable to repay him, Jackson made a deed to Dr. Heart-well, as guardian of Dolly Tarver; and Heartwell and Barnes had the same understanding as to the possession of the property and the payment of interest thereon. This was a verbal agreement between Heartwell and Barnes until sometime in 1872, when the agreement was reduced to writing, whereby Heartwell, as guardian, made Barnes a bond for title, reciting that when a certain amount of money was paid to him by Barnes, he would make Barnes a title to the land, and that Barnes was to pay $889.38 per annum for the rent of said property semi-annually, commencing December 3,1871, and Barnes was also to pay the taxes upon the property and keep it insured, and was to transfer the policy of insurance to Heartwell. This agreement between Heartwell and Barnes went on for
In 1881, T. F. Newell, as next friend of Charles P. Heartwell, Jr., filed a bill against Charles P. Heartwell, Sr. as guardian of Charles P., Jr., and against Merrick Barnes and Robert N. Ely; in which bill he alleged the foregoing facts, and claimed that this house and lot sold by Dickson to his father, Charles P., Sr., as guardian for Dolly Tarver, under the will of said Dolly Tarver belonged to him, the said Charles P., Jr. He sought, by his bill, to recover the property, and asked that, in the event of his failure to recover it, he be allowed to foreclose this deed made by Jackson to Heartwell, Sr., as an equitable mortgage. By a subsequent amendment to his bill, he alleged the fact that Chai'les P. Heartwell, Sr., as the guardian of Dolly Tarver, had invested upwards of $3,400 of his wai’d’s money in this px*operty, and asked a decree against Barnes for the amount of that money, with interest thereon.
Barnes answered the bill, and alleged that he had induced Jackson to buy this land at the sheriff’s sale, with the distinct understanding that the land was to be his, and that Jackson was to lend him this amount of money, and take the deed in his own name as security therefor; and that when Jackson wanted the money, he was unable to pay it, and employed Ely to get a person to advance the money to Jackson, on the same terms and conditions; and that Ely, upon the saxne terms and coxxditions, got Dr. Heartwell to pay off Jackson and take a deed from Jack
On the trial of the case in the court below, the jury returned a verdict for the complainant. The respondents made a motion for a new trial upon many grounds, as set out in the record, which motion was overruled and they excepted.
The case in the court below seemed to turn oh the last amendment made by the complainant to this bill, in which he claimed simply the property, with interest on the money advanced by Heartwell to Jackson; and the jury returned a verdict for $2,800 in his favor, on that amendment to his bill, with a lien upon the property until that amount was paid.
Judgment affirmed on terms.