Brown v. Burke

• Citation: 22 Ga. 574
• Decision Date: 30 June 1857
• Docket Number: No. 9.,9.
• Parties: William J. Brown, et al., plaintiffs in error. vs. David B. Burke, defendant in error.
• Court: Supreme Court of Georgia

22 Ga. 574

William J. Brown, et al., plaintiffs in error. vs. David B. Burke, defendant in error.

No. 9.

Supreme Court of the State of Georgia

JUNE TERM, 1857.

Action for recovery of land, in Baker. Tried before Judge Allen, at May Term, 1857.

David B. Burke instituted his action, under the form prescribed by the Act of 1847, against Benj. R. Smith and Samuel J. Smith, for the recovery of lot of land No. 281, in the 8th district of Baker county.

William G. Brown and the Smiths, filed their bill in Equity to enjoin this action. The bill set forth, that said lot of land was purchased by William Burke, the father of theplaintiff, from one Seth C. Stevens, in the year 1844, who paid the full consideration money, but that titles to the same were executed by Stevens, to David B. Burke, the plaintiff, an infant son of William Burke. That the conveyance although absolute on its face, was intended for the use and benefit of the father, who went into possession and made improvements, and with his family resided on the place, until the year 1847, when he sold it to one William S. Kea; Kea sold it to his brother, Francis D. Kea, in 1848; Francis D. sold in 1850, to William G. Brown, who on the 26th December, 1850, sold the same to the defendants in the action at law, and who are now in possession of the premises.

The bill further alleges that all the foregoing conveyances were bona fide and for valuable consideration, and that complainant Brown had no knowledge or notice of David B. Burke's claim or title, when he purchased from Kea.

The answer of David B. Burke admits the conveyance of the premises from and to the different parties as set forth in the bill; and at the time of the execution of the deed from Stevens, that he, defendant, was a minor, about fifteen years of age. But he avers that he went with his father into possession of the land, and that the same was paid for by his own funds, and not by his father. He further charges that all the purchasers had notice of his title, and that the same was recorded in the proper office, within less than twelve months from the date of its execution, and that said deed passed from his father to Kea, and to all the subsequent purchasers successively. He denies that said land was conveyed by Stevens for the use or benefit of his father; admits the pendency of the action at law, and denies all combination, &c.

The action at law and the Equity cause were tried together, and submitted to a special jury, on the appeal.

Complainants swore Seth C. Stevens, who testified, that William Burke contracted with him for the purchase of the land: Gave his notes for the purchase money and took a bondfor titles, and that he subsequently paid him for the land with his own funds, and took the deed to his son, David B. Burke, then a minor about fifteen years old, saying at the time, that he desired the deed made this way, so that he could not spend it, and that he might have a permanent home for himself and family. William S, Kea had notice of David B. Burke\'s title when he bought.

fames George testified, that the Smiths took possession about the 1st of January, 1851; about seventy-five acres then cleared and in cultivation. William Burke put the first improvement on the lot; built the houses and cleared some thirty or forty acres or land; kept possession of it about three or four years before he sold it; heard him say while in possession, that he had given the lot to his son David, who was a minor, living with his father. William Burke is now dead. Heard Benj. R. Smith say that he had notice of David Burke's title before he purchased the lot.

Francis D. Kea testified, that he is of opinion that he will not be liable on his warranty deed to Brown, if his title should fail; when he bought the land from his brother, William S. Kea, he had heard of David Burke's title to the lot— He sold the land in the summer of 1850 to Brown, and took his note for the purchase money, $1,117; $600 to be paid on the making of a deed, and the balance on time, and gave his bond for titles. That after this, and before he executed title, he wrote to Brown, who resides in Wilkinson county and who was a stranger in the county of Baker, giving him notice of David Burke's title, and proposing to rescind the trade, if he desired it, which letter Brown admitted that he received; that when Brown came down in December, 1850, he again told him of this title, and offered to let him off, but Brown insisted on the performance of the contract, &c.

It was admitted that William Burke paid for the land by a transfer to Stevens, of a negro.

The jury found for the plaintiff, David B. Burke, the premises in dispute and cost of suit.

Defendants moved for a new trial on the following grounds:

1st. Because the Court erred in admitting the testimony of Francis D. Kea, a witness interested in the event of the suit.

2d. Because the verdict was contrary to law and evidence.

3d. Because the Court erred in charging the jury that defendants were not entitled to recover, if they had notice of David Burke's title before their respective purchases,, and that they were affected with notice, if received at any time before the payment of the purchase money, unless they should believe from the evidence, that the deed was made to David B. Burke for the use of his father, and not as an advancement to David, in which event they should find for the defendants.

4th. Because the verdict was contrary to the charge of the Court.

The motion for a new trial was refused on all the grounds therein taken; and defendants excepted.

R, F, Lyon, for plaintiffs in error.

Jno. Lyon, for defendant in error.

By the Court.—McDonald, J. delivering the opinion.

The action at law and the bill in chancery to enjoin that action, and to set aside the title on which the plaintiff relied in his action at law, were submitted to the jury together by consent. This consent amounted to a dissolution of this injunction, and the jury returned a verdict in favor of the plaintiff in the action at law for the premises in dispute. The defendant moved for a new trial on four grounds as set forth in the statement of the case.

The first ground is that the Court erred in admitting the testimony of Francis D. Kea, as a witness interested in the event of the suit. I do not find in the record that any objection was made to him as a witness on the trial. But, be that as it may, he conceived himself to be a disinterestedwitness, but if he was mistaken in that, as he probably was, if the proof of notice was necessary at all in the case, he gave evidence against his interest and was therefore competent.

The second and third grounds in the notice may be considered together, for if the...