41 Ga. 684 | Ga. | 1871
Lead Opinion
We think it is well settled that the taking of the notes of the purchaser, with a third person as security thereto, is not
_ It was error in the Court to reject the evidence offered by Sanders, since it went to rebut the presumption arising from the fact that O. P. Anthony, the security, signed the note. It is said that there was no evidence that McAffee and Owens knew anything of the facts proposed to be proven by Sanders, and that the error of the Court was therefore 'harmless. We are not sure that, under the facts as they were proved before the jury, they might not have some right to infer that Anthony had told them of all the facts, as they actually existed. At any rate, as the evidence of. Sanders was excluded, he 'was not called upon to prove that Owens and McAffee knew what the Court held to be immaterial.
*We express no opinion as to the weight of the evidence, either of notice or the necessary effect of the evidence ruled out by the court.' All we decide is, that the evidence ought have gone to the jury. Its weight was for them to consider, whether there was a \waiver or not of the lien, whether there was a rebuttal of the prima facie effect of the act of taking security, and whether McAffee and Owens had notice, were all questions of fact for the determination of the jury under the charge of the Court as to the law.
As the evidence of Sanders was rejected, and was not before the jury, we see no error in the charge of the Court, as the case then stood, since there was nothing to rebut the presumption of waiver arising from the admitted fact that O. P. Anthony was only security to the note. The error was in rejecting the testimony.
Judgment reversed.
Concurrence Opinion
concurring.
When, on the trail of a bill filed to assert and enforce vend- or’s lien for the unpaid purchase-money due for the land sold, the Court was requested in writing to charge the jury, “If they should believe, from the evidence, that defendants bought the land with notice that the purchase money due complainant was unpaid, the fact that O. S- Anthony (being only a security) signed the note with S. W. Anthony to complainant for the purchase-money, did not prevent complainant from having a vendor’s lien on the land,” which charge the Court declined to give, but on the contrary, charged the jury, “That if in fact, complainant
Held, That the mere fact of taking security on the note given for the purchase-money of the land, does not of itself necessarily defeat the vendor’s lien, and that the Court below erred in not charging the jury as requested, and in charging the jury as stated in the record; as the charge as given, withdrew *from the consideration of the jury that part of the evi- . dence, which went to show that the defendants purchased the land with notice that the purchase-money for the land had not been paid at the time of the purchase. The jury should have been allowed to consider and pass upon that evidence, and to have given to it such credit and weight as in their judgment it was entitled to, under the circumstances which attended the transaction between the parties. I also concur in the judgment of reversal, on the ground that the Court below erred in rejecting the evidence of Sanders, as stated in the record.
