111 Ga. 152 | Ga. | 1900
Mrs. R. C. Leyden brought her suit in Fulton superior court against Jacob F. St. John, and his wife, Mrs. Alice J. St. John. The substantial allegations in the petition, in so far as concern the issues involved on the trial, are as follows: In April, 1896, Jacob F. St. John entered into a contract with petitioner “toexchange with her his lot on Auburn avenue in the city of Atlanta in land lot 51 of the 14th district of said county and State, fronting 55 feet on the south side of Auburn avenue and running back 179 feet along a 20-ft. alley which lies east of said lot, subject to a loan deed of $2,500.00.” In accordance with this agreement St. John executed to her his warranty title deed to said property on April 80, 1896, which was duly recorded May 6,1896, the consideration named in the deed being $5,000. In exchange for this property, petitioner executed to said St. John her warranty deed to 10 acres of land in land lot 176 in the 14th district of Fulton county, the consideration of that deed being $4,000. St. John gave to petitioner also five shares, of the par value of $100, of the capital stock of the Georgia Tile & Artificial Stone Company. Petitioner further charged that, in delivering the Auburn avenue lot to her, St. John represented and pointed out thedines of said lot as extending west from the corner of a 20-ft. alley, 55 feet along Auburn avenue, to the middle of the third row of small .tenement-houses situated on said lot and the lot next adjoining it on the west, and running back 179 feet, of uniform width with front. Since receiving the deed to this land, she ascertained that St. John misrepresented to her the number of front feet he owned in the lot conveyed to her; that the western line of the lot, instead of extending to the place pointed out, was in fact ten feet east of said point, and that the ten feet, extending the full length of the lot sold, was never owned by St. John, but was owned by another party, thus making petitioner’s actual frontage on Auburn avenue from said alley 45 instead of 55 feet, as bargained for. She then demanded of St. John
In answer to the charges in the petition which related to a breach of the warranty in the deed as to the ten feet, the defendant denied that he misrepresented to petitioner the number of front feet conveyed to her, and averred that petitioner not only had title, but also the actual use and occupation of the 55-ft. lot conveyed to her by him. The answer further joins issue with the allegations in the petition with reference to the other causes of complaint therein set forth; but as these were abandoned, as above indicated, it is unnecessary to set forth the replies thereto made by the defendant in the pleadings. The jury returned a verdict, for the plaintiff for ,$500 principal.
In several grounds of the motion for a new trial, particularly the ninth and tenth, complaint is made of'the charge of the court with reference to the conduct of defendant in pointing out the line after the trade had closed. Among the instructions of the court on this subject excepted to is one to the effect that “if, after the trade was closed and after both parties had conveyed titles respectively to each other, the defendant then undertook to point out the lines of the Auburn avenue lot, and did so erroneously, but there was no consideration for doing so, and this was not a part of the making of the trade, then this would not furnish a ground for recovery by the plaintiff of this cause of complaint.” It is alleged in the motion that this charge suggested to the jury that they might find that pointing out the line, after both parties had conveyed titles to each other, was á part of making the trade. Instead of the charge containing any such suggestion, it was exactly the opposite, and operated beneficially to the defendant instead of to the plaintiff.
In the tenth ground of the motion another charge on this subject excepted to was to the effect that the evidence as to whether there was a pointing out of the line after the trade was made and concluded might be considered by the jury as to whether there were admissions by the defendant as to what he claimed the line to be, or as to whether he had located it erro-' neously; and that so far ás this throws any light'upon the question at issue between the parties, it is admissible, and may be considered along with the other evidence in the case; but, as representations, if made after the trade had been closed, and. not acted upon, they Avould not amount to a warranty, or furnish ground of recovery, if made without a new consideration. This was a correct view of the law. As aboAm seen, the sayings
Judgment affirmed.