Stansell v. Lindsay

50 Ga. 360 | Ga. | 1873

McCay, Judge.

1. We do not propose to discuss the evidence in th s case The two principal witnesses are directly in conflict upon the main facts of the case. They, too, are the real parties to the controversy; and the verdict of the jury, if there be no error of law, ought not to be disturbed by the Court. As we understand the case, the new trial was granted because the Judge, upon further argument, was of opinion that he had erred in his charge to the jury, in telling them that if they believed the complainant had made out his case, they were authorized to decree a specific performance. The new trial is granted on the ground that the original contract was one which the administrator had no right to make. This illegality of the contract is not because it was champertous, but because the administrator has, in this State, no power to charge the land with any such obligations.

We do not think there was error in the charge of the Court as the case stood. If there was a bona fide suit pending against the administrator for the land, we think he had the right to employ counsel to defend the title of the estate, and to charge the corpus of the estate with the fee. If the fee was reasonable, and a proper fee to be given, and it was fairly and bona fide charged on the land by written contract, we see no reason why it should not be enforced by specific performance.

The heirs-at-law are not complaining of the charge-. The present defendant sets up all his rights under this contract. He is estopped from denying its validity. He cannot claim under it and deny it. He cannot be hurt by this decree, except so far as he is compelled to give up what he claims under the contract. If the heirs-at-law have any rights, they will not and cannot go on him; and if this contract was a fair and proper one, we think the heirs-at-law cannot complain. If the administrator could contract a debt for a fee, and bind the heirs for the debt, or bind their property in his hands, to-wit: the land for the debt, we see no sound reason why the contract should be illegal because he has done by express agreement what the law would enforce by reason of the implied agreement. In the case of White vs. Denkins, 19 Georgia, 285, this Court held that the corpus of a trust estate might be sold by equity to pay a fee for its preservation. The only question would be one of parties. But here the fact is that the title of the heirs has been divested by a sale. The plaintiff follows the land with his claim, charging the purchasers with notice.

2. As to the question of non-joinder, there is evidence, which the jury had a right to believe that the complainant was the sole contractor; and that the introduction of Glass was a mistahe. This was distinctly left to the jury to decide. If they believed the witness, they found rightly. We think they had a right to believe him; and as we think the charge of the Court was not illegal, we reverse the judgment granting a new trial.

Judgment reversed.