57 Ga. App. 873 | Ga. Ct. App. | 1938
C. L. West, I. A. Heard, and T. W. Mattox sold a city lot in Moultrie to Annie P. Lee for $550, executing and delivering to her a warranty deed. Subsequently Annie P. Lee sold the property to D. F. Lee for $600, and executed and delivered to him her warranty deed. A third party instituted an action in ejectment against D. F. Lee and tenants in possession, to recover the lot, and the jury trying the case rendered the following verdict: “We, the jury, find for the plaintiff all the premises in dispute; and also we find that the value of the premises (not counting any improvements placed thereon by the defendants) is $350, and that the mesne profits found for the plaintiff for defendants’ use of the premises (not based on any improvements thereon) is $50. We further find the value of the improvements placed thereon by defendants to be $1500; that the plaintiff may take the premises and improvements by paying the defendants the sum of $1500, less mesne profits, $50; or that, at the plaintiff’s option, the defendants may acquire, by decree of the court, title to both the premises and improvements by paying to the plaintiff the said sum of $4:00, within such time as the court, shall fix,” upon which verdict judgment was duly entered. The defendants herein were vouched into court in the ejectment suit. Then D. F. Lee sued the defendants West, Heard, and Mattox for $550, the amount received by them, for breach of their covenant in the deed from them to Annie P. Lee, alleging substantially the foregoing facts and that by virtue of the verdict and judgment in the ejectment suit the plaintiff had been evicted from the premises. The defendants denied the material allegations of the petition and alleged that but for the negligence of the plaintiff the ejectment suit would have resulted in a verdict and judgment for him. The case was tried and resulted in a directed verdict and judgment for plaintiff for $550. Exception was taken to the judgment overruling the motion for new trial. The material portion of the judgment of the court in the ejectment case was as follows: “That upon the failure of the defendant D. F. Lee to make such payment to the plaintiff within ten days from this date [referring to the payment of the amount designated as the value of the property involved, to wit, $350, and the amount deemed by the jury to be the mesne
Our view is/that the verdict and judgment in the ejectment case were an eviction under the law considered as to either one of the alternative provisions. It was an adjudication that there was no consideration for the deed from the defendants to Annie P. Lee, that title had completely failed, and the moment the verdict and judgment were signed D. F. Lee held under a new and distinct title and was thereby evicted from the title under which he originally held, especially when he bought the outstanding title. We do not think that it would be at all reasonable or fair to require that D. F. Lee be required to permit his property to be sold under execution and have to go to the trouble and expense of buying it in and paying out a large sum of money therefor, or of permitting another to buy it, in the event of a bid on the property higher than he was willing or able to pay. The law on this question seems to be too well settled to require further discussion. White v. Stewart, 131 Ga. 460 (62 S. E. 590); Joyner v. Smith, 132 Ga. 779 (65 S. E. 68); Leary v. Durham, 4 Ga. 593, 607; Shaw v. Guthrie, 14 Ga. App. 303 (4) (80 S. E. 735); Bank of the State of Georgia v. O’Neal, 101 Ga. 673 (28 S. E. 973); Lowery v. Yawn, 111 Ga. 61 (36 S. E. 294). Under these decisions there was no variance between the allegations of eviction and the proof thereof.
These rulings dispose of all the questions raised. The court did not err in directing a verdict for the plaintiff, and there is no merit in any of the other assignments of error.
Judgment affirmed.