Howard v. Gresham

• Decision Date: 31 January 1859
• Citation: 27 Ga. 347
• Parties: John T. Howard, plaintiff in error. vs. Davis E. Gresham,claimant, defendant in error.
• Court: Georgia Supreme Court

27 Ga. 347

John T. Howard, plaintiff in error. vs. Davis E. Gresham, claimant, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1859.

Claim, from Early county. Tried before Judge Kiddoo, at September Term, 1858.

On the 12th December, 1851, James B. Brown, executed a mortgage of certain lands to E. B. Lightfoot, to secure the payment of certain notes. The notes bore even date with the mortgage. In February or March, 1854, Lightfoot assigned the notes and mortgage to John T. Howard, for valuable considertion. Howard proceeded to foreclose the mortgage, and upon obtaining judgment, issued a fi. fa., under which the land mortgaged was levied upon, and advertised to be sold. Thereupon, Davis E. Gresham interposed a claim to a part of said land.

Upon the trial of this claim, plaintiff in fi. fa. proved that the land levied on was the same as that embraced in the mortgage, and upon which Brown went into possession under Light-foot, about the last of the year 1851, and cultivated the same about two years, and that claimant went into possession under purchase from Ligthfoot. That Lightfoot was in possession from 1845 until his sale to Brown.

Claimant proved by Ann E. Poole, examined by commission, that in 1854 she heard Lightfoot tell Gresham, the claimant, that when he, Lightfoot, got the money that witness's father had given him an order for, he would release the land from the mortgage.

Claimant then introduced and read in evidence the following letter.

Cuthbert, January 5th, 1854.

Col. Strafford: —Please see Brown and Mulligan and get. all the money you can send by the little boy, I am in a great tite for money. Say to Gresham that I collected the Bass note. I have killed his note and given Brown credit for the balance. The balance, after paying the Gresham note, was $134.25. I send the note which you will please hand to Gresham, and let him have Brown give him credit for the above amount. We are all well, &c.

(Signed,) E. B. LIGHTFOOT.

John T. Howard, plaintiff in fi. fa., testified, being called by claimant, that he sold his interest in the livery stable in Cuthbert to Lightfoot, receiving the notes and mortgage in payment. He took the notes and mortgage in good faith, and without any knowledge that there was any payment or release of any part of the property.

Plaintiff's counsel proposed to ask him, being a witness, if he did not have a conversation with Brown, and whether Brown said there was any release or claimed any. Claimant objected to the question. The Court sustained the objection, and plaintiff's counsel excepted. 1st. The Court charged the jury, that if Lightfoot, while he held the mortgage, made a verbal promise to release the premises upon the payment of a certain sum of money, and the claimant paid the amount, then the land was exempt and discharged from the mortgage lien as against Lightfoot.

2d. That if Howard obtained the notes and mortgage after the notes became due, then all the equities existing between claimant and Lightfoot, attached and existed against him; and that the agreement to release the land upon the payment of the money, if complied with by claimant, would discharge the lands from the mortgage and notes in the hands of Howard, and the jury must find for claimant. To which charge plaintiff excepted.

The jury found for the claimant, and plaintiff moved for a new trial upon the following grounds:

1st. Because the jury found contrary to law.

2d. Because the jury found contrary to evidence.

3d. Because the Court erred in its charge to the jury.

4th. Because the Court erred in admitting evidence, against the objection of counsel, of a verbal release of the premises by Lightfoot.

The Court overruled the motion for new trial, and plaintiff excepted.

Hood & Robinson, for plaintiffs in error.

Law & Sims, contra.

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

The record in this case is so defective, that a satisfactory judgment can hardly be rendered upon it. We have no copy of the mortgage or of the note, upon which it is founded. We can not tell whether Gresham's deed was recorded before the transfer was made to Howard, nor whether Gresham was in possession of the land at that time. Indeed, neitherthe bill of exceptions, nor the transcript of the record, shows whether the mortgage note, together with the security, were transferred to Howard by Lightfoot before or after the sale by Brown to Gresham. It is assumed in the charge of the Court, and that charge is not complained of, that the transfer was subsequent to Gresham\'s purchase, and the case is argued on both sides, upon that hypothesis.

The first question made is, whether the land bought by Gresham, and which was included in the mortgage, could be released by parol from the lien of the mortgage? In Johnson against Worthy, (17 Ga. Rep. 420,) this Court held, that a parol rescission of a contract in writing and under seal, for the sale of land, may be admitted as sufficient evidence of such release, if the rescinding contract has been executed. And so that Court ruled here, viz.-: that if Gresham had paid to Lightfoot the money for that portion of the mortgaged land bought by Gresham of Brown, that then the parol release by...