Allen v. Holding
| Decision Date | 31 August 1859 |
| Parties | Larkin A. Allen, plaintiff in error. vs. MathEW J. Holding et al., defendants in error. |
| Court | Georgia Supreme Court |
In Equity, in Carroll Superior Court. Tried at April Term, 1859.
This was a bill filed by Mathew J. Holding against Larkin A. Allen and John Catlett to enjoin an action of ejectment brought by Allen against complainant for lot of land No. 3, in the sixth district of Carroll county.
The bill alleges that Catlett. was the drawer of said lot, who sold the same in 1828 or 1829, before the grant issued, to one Martin Berry for thirty-five dollars, and that he executed a bond for titles, to be made when the grant should issue. That Martin Berry sold said lot to Jesse Berry, and gave his bond for titles. That on the 20th April, 1836, Jesse Berry sold the lot to John Dobson, and executed to him his bond for titles. That on the 14th March, 1839, Dobson sold said lot to complainant for a valuable consideration, and transferred and assigned to him Jesse Berry\'s bond for titles.
The bill further states that on the 14th November, 1843, the said John Catlett again sold said land to Larkin A. Allen, and conveyed the same to him by a deed duly executed of that date. The bill charges that Allen had notice at the time he purchased that Catlett had previously sold said land, and had given his bond for titles as aforesaid.
The bill further states that, on the 12th August, 1845, complainant sold said land to one Lewis Barton, who has had possession of the same ever since until recently, when, becoming dissatisfied in consequence of the dispute about the titles to said land, and not having paid for the same, he has surrendered said land back to complainant, and that said Barton is now in possession only as the tenant of complainant.
The bill further states that Allen has commenced his action of ejectment against said Barton, and that the same is now pending on the appeal.
The bill prays that said action be enjoined; that complainant be quieted in his possession, and that the deed from Catlett to Allen be delivered up and cancelled.
Defendants answered to the bill, and the case was submitted to the jury upon the bill, answers, proof and charges of the court, who returned a verdict for the complainant. Whereupon defendants moved for a new trial upon the following grounds:
1st. Because the jury found contrary to law and the evidence. 2d. Because the statute of limitations was a bar to complainant\'s right to a recovery. [Abandoned.]
3d. Because the court charged the jury that if they believed from the evidence that Catlett sold the land to Berry, and gave his bond for titles, and that Berry paid to him the purchase money, then at that point their investigation ceased. That it was not material whether Allen had notice or not. That Catlett could convey no title to the land to a second purchaser either with or without notice. That if a party sold land and gave his bond for titles, and received the purchase money before the deed was executed, that he could not convey a title to a second purchaser, even for a valuable consideration and without notice.
The court overruled the motion for a new trial and defendants excepted.
Burke & Black; and Wright, for plaintiff in error.
Thomasson & Featherston, contra.
By the Court.—Benning, J., delivering the opinion.
Ought the court to have granted the motion for a new trial?
Only one of the grounds of the motion was insisted on in this court—the ground of the charge of the court below. That is the only ground, therefore, which will be considered by this court.
The charge was, that if "Catlett sold to Berry, and gave him bond for titles, and if Berry paid the purchase money to Catlett, then at that point their investigation ceased; that it was not material whether Allen had notice or not; that Catlett could convey no title to said land to a purchaser either with or without notice; that if a party sold land and give his bond for titles, and received the purchase money, before the deed to Allen was made, that he could not after-wards convey a title, even to an innocent purchaser for a valuable consideration." Was this charge right? We think not.
Both parties claimed under the drawer, Catlett; the complainant, by a bond for titles made by Catlett in 1828, or 1829, with the purchase money paid;...
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Johnson v. Equitable Securities Co.
...used. There must be notice of such an equity before it can avoid a title otherwise good." Moye v. Waters, 51 Ga. 15. See, also, Allen v. Holding, 29 Ga. 485; Fahn Bleckley, 55 Ga. 81; Nethery v. Payne, 71 Ga. 374 (a); Coody v. Lumber Co., 82 Ga. 799, 10 S.E. 218; Hobbs v. Trust Co., 96 Ga. ......
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Gleaton v. Wright Et Ux
..." aud executed with the formality prescribed for the execution of a deed to land, is. "a deed of bargain and sale." See Allen v. Holding, 29 Ga. 485, 489; Lathnin v. Inman, 88 Ga. 505, 514, 15 S. E. 8. It is not, however, a deed within the meaning of section 4198 of the Code. It is said, ho......
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Gleaton v. Wright
...... seal," and executed with the formality prescribed for. the execution of a deed to land, is "a deed of bargain. and sale." See Allen v. Holding, 29 Ga. 485,. 489; Latham v. Inman, 88 Ga. 505, 514, 15 S.E. 8. It. is not, however, a deed within the meaning of section 4198 of. the ......
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Latham v. Inman
...perhaps it could be treated as within the statute after payment of the purchase money in full. This assumption seems involved in Allen v. Holding, 29 Ga. 485, and in thesame case, on a second writ of error, 32 Ga. 418; and see Nethery v. Payne, 71 Ga. 374. But there is no ruling that a paro......