27 Ga. 125 | Ga. | 1859
By the Court.
delivering the opinion.
Nancy C. Price and Maria A. Price, orphan sisters, in the lottery of lands which lay in the county of Muscogee, at the time of the lottery, drew lot of land number two hundred and ninety-eight, in the first district of that county. The original survey of that district was wrong, which made a resurvey necessary, and by the re-survey, lot number two hundred and ninety-eight in the old became and was designated as lot three hundred and one in the new survey, and a grant was thereupon issued to said orphans, for number three hundred and one.. A man named Thomas Scott married Maria A. Price, and a man named William Cosper married Nancy C. Price, and they both entered into possession of said land. In 1833, one William Smith sued the defendant in error, in an action of trespass, for alleged trespasses on said land, and obtained a verdict. The defendant appealed. Smith, in his declaration, described himself as the agent of Scott and 'Cos-per, who had removed to another county, and left him in possession of the land. Scott died, and William Burgess took out letters of administration on his estate in the county of Gwinnett. During the pendency of the action of trespass
The defendant answered, denying complainant Smith’s title to the land, and that it was drawn by the said orphans* and claiming it himself under another title. This cause was tried at February Term, 1833, and the jury decreed in favor of the complainant Smith. The defendant appealed, and the cause was tried on the appeal, at the August Term, thereafter, with the same result. The plaintiff in error is the son. of Thomas Scott, and, as his heir at law, has instituted an action of complaint for the recovery of the land, against Gideon Newsom, the defendant in error. He and Mary A. Scott his mother, had previously instituted a suit in chancery, for the recovery of one-half of said tract of land, which was dismissed on demurrer. The judgment of the Court on that demurrer was plead in bar of Scott’s suit at law. But that, point was not seriously insisted upon; and if it had been* it is not tenable; the parties are not the same, and it does not appear that the title was the same.
During the pendency of the action by the plaintiff in error for the recovery of the land, the defendant in error filed a. bill against him, on which a decree was rendered in favor of the complainant below, on the finding of which the plaintiff in error moved for a new trial, which was refused by the presiding Judge in the Court below, and his judgment thereon is assigned for error.
The bill sets forth the manner in which he obtained title to the other half of said tract of land; but as there is no controversy respecting that in this suit, it is unnecessary to refer to it. The complainant alleges, that he took possession of the land in 1836 or 1837, and remained quietly in possession until 1852, when the suit in equity was instituted against him by William C. and Mary A. Scott. The bill alleges, further, that to William C. Scotts’s action at law for the recovery of one-half the said tract of land, he, the complainant, being defendant in that action, pleaded the statute of limitations and other issuable pleas; and that on the trial, he showed by the record from Gwinnett county, that Burgess was appointed administrator of Thomas Scott in January, 1853; that on the trial of said cause, a verdict was found for
Jesse Tennison was examined as a witness by complainant, and testified that he heard Scott and Cosper say they had sold to Smith, and heard Smith say he had sold to Gideon Newsom.
Joshua Tennison testified the same, and additionally, that Smith said Newsom had paid him. The jury found in favor of Newsom, the complainant, and decreed a perpetual injunction of Scott’s, the defendant’s, common law action. The defendant moved for a uew trial on the grounds,
1st. Because the verdict of the jury is contrary to law, and strongly and decidedly against the weight of evidence.
2d. Because the Court erred in not rejecting that part of the testimony of a witness named Hobbs, which was objected to.
There was conflicting evidence in this case, and so difficult is it of reconciliation, that we shall not attempt it. We do not say that we should have rendered the verdict which the jury did, had it been our province to act in their stead; but there was positive evidence in support of the verdict, and there are strong circumstances and admissions in conflict with it.
Judgment affirmed.