14 Ga. 118 | Ga. | 1853
By the Court.
delivering the opinion.
Without calculating interest, there should have been a decree of $200 for the complainant. Garmany was still owing Tompkins the three first installments for the land, of $3,000 each; making $9,000; and $2,200 on the last or large note, as the parties called it, viz: $4,000, with a credit of $1,800 ; making the whole amount of Garmany’s indebtedness to Tompkins $11,200. From this sum, deduct the $11,000, owing by Tompkins to Garmany, on the re-purchase of the land, and it leaves a balance in favor of Tompkins, of $200. Instead of which. the jury, not only without proof, but against the oath of the only witness, who deposed as to the agreement, returned a verdict in favor of the defendant, for $1,348 61.
We must, therefore, send this case back. On the re-hearing, it will be competent for the defendant to offer proof of payments, by his intestate, provided any were made. If this should be done, and the mortgage debt be found to, bo unpaid, Tompkins must discharge the amount, before he will be entitled to a decree, for the re-conveyance of the land.
We do not intend to pre-judge the rights of creditors, if there be any; and we infer from the record, that there are outstanding debts still due and unpaid, against the estate of William J. Garmany. For Pleasant H. Whitaker testifies that he held
Judgment reversed.