Booher v. Worrill

• Decision Date: 31 July 1876
• Citation: 57 Ga. 235
• Court: Georgia Supreme Court
• Parties: Elizabeth Booher, plaintiff in error. v. Edmund H. Worrill,defendant in error.

57 Ga. 235

Elizabeth Booher, plaintiff in error. v. Edmund H. Worrill, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

Debtor and creditor. Husband and wife. Fraud. New trial. Before Judge Crawford. Muscogee Superior Court. November Term, 1875.

On May 31st, 1872, Worrill recovered a judgment against David L,. Booher and Milo Booher, on a note dated September 30th, 1868, and due at two years, for $2,000 00. The execution based upon this judgment was levied upon an undivided half-interest in a certain part of lot one hundred and seventy, as the property of D. L. Booher. A claim thereto was interposed by Elizabeth Booher. Upon the issue thus formed, the evidence made, in brief, this case:

Until May 21st, 1872, the title to the property levied on was in David L,. Booher. On that day, his wife, the claimant, presented an account for $6,000 00 for rents of her property, which she alleged had been collected by him and not paid over. Thereupon he conveyed to her the property in dispute, subject to a mortgage in favor of Robert W. Burdell, for $3,500 00, and a judgment in favor of Alfred J. Young, for about $700 00, at a valuation of $3,000 00, and the aforesaid account was credited accordingly. It was further agreed that if Booher should pay off the aforesaid mortgage and judgment, then said conveyance should be taken by his wife in full settlement of her claim for rents misappropriated. This conveyance strioped Booher of the last of his property. The object of the mortgage to Burdell was to raise money with which to pay off the debt to Worrill. Burdell, upon being thus secured, indorsed Booher's note for $3,500 00, to fall due one year thereafter. The note and mortgage were made November 25th, 1871. The latter tried to discount this paper, but failed. He twice offered it to Worrill's attorney, upon condition that indulgence should be granted for *two years, but it was refused. The note was then returned and the mortgage canceled. The Young judgment was paid off, thus leaving, as insisted by claimant, an unincumbered title to the property in dispute in her.

On August 25th, 1869, Booher conveyed to claimant, in consideration of natural love and affection, his residence and lot and store house, occupied by F. W. Andrews. In 1870, he sold a lot and store-house to one Illges, for $7,000 00 in cash.

The account for rents collected and not paid over to her, presented by claimant, was as follows:

                -------------------------------------------------------------------------
                |" Received rent of store 141, for 18 mos., at $66 00 per mo|$1,200 00  |
                |-----------------------------------------------------------|-----------|
                |" " " 117. " " " " $100 00 " "                             |1, 800 00  |
                |-----------------------------------------------------------|-----------|
                |" for dwelling house from N. J. Bussey                     |600 00     |
                |-----------------------------------------------------------|-----------|
                |" previous to the above from Harrison, A. L,., for store   |2, 400 00  |
                |-----------------------------------------------------------|-----------|
                |                                                           |$6,000 00."|
                -------------------------------------------------------------------------
                

In 1871, Booher, as trustee, paid city tax on property valued at $17,500 00; in 1872, on property valued at $18,000 00.

N. J. Bussey testified that he occupied the house known as the residence of D. L,. Booher in the year 1869.

The jury found the property subject. The claimant moved for a new trial because of error in the charge of the court, not material here; because of mistake in the evidence of Bussey, and because the verdict was contrary to the evidence.

In support of the second ground, the statement of the witness alluded to was read, on the hearing of a motion for a new trial, to the effect that, upon examination he had ascertained that he lived on the Booher place from October, 1869, to October, 1870. Also, the affidavit of claimant's attorney to the effect that this mistake was used most deleteriously to his client's case in the argument before the jury, in this, that the account for rents misappropriated, presented by claimant against her husband, and by which they settled, contained an item for rent of dwelling-house collected from Bussey, $600, whilst the evidence showed that the latter had only occupied the house six weeks after title was conveyed to claimant.

The motion was overruled and claim...