Lackey v. Bostwick
| Decision Date | 31 January 1875 |
| Parties | Thomas F. Lackey, plaintiff in error. v. Helen C. Bostwick,defendant in error. |
| Court | Georgia Supreme Court |
Practice in the Supreme Court. Charge of Court. Tender. Ejectment. Equity. Pleadings. Before Judge Hopkins. Foulton Superior Court. April Term, 1874.
For the facts of this case, see the decision.
Thrasher & Thrasher, for plaintiff in error.
Lester & Thomson, for defendant.
This was an action of ejectment brought by the plaintiff against the defendant to recover possession of a city lot in the city of Atlanta. On the trial of the case the jury found a verdict in favor of the plaintiff. A motion was made for a new trial on the ground that the verdict was contrary to the evidence, contrary to law, and contrary to the charge of the court. The motion for a new trial was overruled, and the defendant excepted.
*1. Assuming that the court charged the law correctly,
as we are bound to presume it did, it was incumbent on the plaintiff in error to have set forth what the court didcharge, and to have specified wherein the verdict was contrary to that charge. The charge of the court is not in the record, and we have no knowledge what it was. But presuming it was a legal charge, and that the jury found their verdict in accordance with that charge, the alleged error that the verdict was contrary to law, and contrary to the charge of the court, amounts to the same thing. The error complained of therefore, is not apparent to us from the record in this case.
2. There is certainly sufficient evidence in the record to authorize the verdict. The plaintiff read in evidence a deed to the lot sued for, from the defendant to John R. Bostwick, dated 28th September, 1868, and a deed from John R. Bostwick to Helen C. Bostwick, the plaintiff's lessor, dated 11th October, 1869, and proved the defendant was in possession of the lot. The plaintiff, therefore, proved a title to the promises in dispute. The defendant, it is true, filed an equitable plea to the plaintiff's action, in which he alleged that the deed was executed by him to Bostwick for the purpose of securing the payment of a note which he owed him, for $300 00, and that the deed was only a mortgage; that Helen C. Bostwick, the plaintiff's lessor, was the wife of John R. Bostwick, and had notice of the object and purposes for which the deed was made. There is no offer by the defendant in his equitable plea to pay the principal and interest due...
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