Lane v. Latimer

• Decision Date: 30 June 1870
• Citation: 41 Ga. 171
• Parties: S. H. LANE, plaintiff in error. v. JOHN R. LATIMER, defendant in error.
• Court: Georgia Supreme Court

41 Ga. 171

S. H. LANE, plaintiff in error. v. JOHN R. LATIMER, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Money had and Received. Contracts. Evidence. Before Judge

Andrews. Hancock Superior Court. April Term, 1870.

*On the 22d of January, 1863, Latimer conveyed to Lane certain land in said county, in consideration of Lane's note for $2,600 00, of that date, due the 25th of December, 1863, payable "in currency bankable at par in the banks of Savannah or Augusta." On the 27th of July, 1863, Lane conveyed said land to Laurena Tye, executrix of her husband and her children, by name, taking her note for the same amount, and payable at the same time with Lane's note to Latimer.

These notes were outstanding at the close of the late war, and the said three parties, on the 22d of September, 1866, submitted to arbitration, as follows: "The said John R. Latimer having sold the said tract in dispute to the aforesaid S. H. Lane, and he, the said Lane, having sold the tract to the aforesaid Mrs. Tye; now, whereas, the aforesaid S. H. Lane and Mrs. L. Tye, have erected upon the aforesaid premises certain buildings, since the purchase of the same by them, and whereas, the said John R. Latimer agrees to retake the aforesaid premises, paying for them a valuable consideration. Now, the real matter in dispute is not in reference to the land, but in reference to the value of the buildings erected thereon, and in reference to the rent of the premises for the last three years." On the 2d of October, 1866, the arbitrators adjudged said improvements to be worth $450 00, and that "in the settlement and trade between the parties in the retaking of the land by John R. Latimer, " nothing should be allowed for rent.

On the 30th of January, 1867, Latimer sued Lane on his $2,600 00 note aforesaid. Latimer tendered said $450 00 to Lane and Mrs. Tye, and insisted on possession of the land but Mrs. Tye would not give possession. Latimer filed a bill against her, reciting the foregoing and praying that she be compelled to give Latimer possession pursuant to said award. In it he averred that Lane sold the land to Mrs. Tye. Pending the action, Lane and Latimer agreed in writing, "to settle the land difficulty" between them by Latimer'sagreeing to pay Lane $2,125 00 for said land, and * Lane\'s agreeing to make Latimer a good and sufficient title thereto, when said bill filed by Lane against Mrs. Tye was decided. And on the 14th of January, 1868, Latimer delivered to Lane the following paper.

"$2,125 00. Received of S. H. Lane, twenty-one hundred and twenty-five dollars, in payment for five hundred acres of land, known as the Tye place, possession to be given when the suit at law concerning the place, now pending, is decided. January 14th, 1868. J. R. Latimer."

Said bill in equity was demurred to, and the demurrer was overruled. Without any trial, Latimer dismissed this bill in April, 1869.

On the 16th of September, 1869, Lane sued Latimer for $2,125 00, averring that on the 30th of December, 1867, Latimer fraudulently represented to him that he had an equitable right to the title to said land, and that Lane, knowing the land and trusting Latimer\'s representations as to his rights, agreed to buy from him said land, and on the 14th of January, 1868, paid Latimer $2,125 00 for it, taking the receipt aforesaid; that Latimer knew, on the 30th of December, 1867, that he had no equitable right to the title in said land; that Latimer fraudulently continued his bill aforesaid (it being the "suit at law" alluded to in said receipt,) and finally voluntarily dismissed it, because he had no equitable right to title to said land; that thereupon Lane demanded his $2,125 00 back, but Latimer to pay it, wholly refused to his damage, etc.

Latimer pleaded that his promise to give possession of said land was based upon said agreement of the 22d of September, 1866, in which Lane represented said land to be in possession of Mrs. Tye solely, and upon the award made under said agreement, and his offer to pay said $450 00. At said time his said bill was pending, and Lane had told him that nothing was in the way of the specific performance prayed for, but the indisposition of Mrs. Tye to regard her agreement, and at the time of said promise to give him possession, Lane told him that Linton Stephens had said that the wished-for decree was certain; that Lane knew that Latimer's *promise of said possession was based upon the belief that Mrs. Tye would give possession, and that his failure to deliver possession resulted from his inability to do so, and that that inability was caused by Lane's failure to perform his agreement; that his expectation of being able to enforce the. performance of said agreement against Mrs. Tye, was founded solely on Lane's fraudulent representation that Mrs. Tye solely had possession of said land; whereas, in fact, the land belonged to her as executrix of her husband and to her named children, and was in their joint possession under said deed from Lane; that these children were not parties to said agreement of the 22d of September, 1866, and therefore they could not be compelled to perform. When this last cause was called for trial, an order was first taken dismissing the suit brought by Latimer against Lane, on the $2,600 00 note.

Plaintiff's counsel read in evidence the said receipt, said agreement of the 30th of December. 1867. said bill in equity, the demurrer, etc., with the order dismissing: the same. A demand and refusal of title and possession of said land, and that said bill was the "suit at law" alluded to in the receipt, were admitted by defendant. The defendant's counsel read an admission by plaintiff that he did tell defendant and his counsel that he made a deed to said land to Mrs. Tye, when in fact it was made to her as executrix of her husband and toher children, therein named. It was then shown that upon the discovery that the deed was so made, Latimer\'s counsel was of opinion that there could be no recovery in said bill because of said interest of the children, and thereupon and for that reason, the bill was dismissed, after the demurrer was overruled, and before the pleas were heard or any answer filed. The deeds from defendant to plaintiff, and from plaintiff to Mrs. Tye, as executrix, and her children, were read in evidence. Defendant then testified, that in a few days after the maturity of his $2,600 00 note he tendered to Lane the sum in Confederate treasury notes, and that he refused to accept them in payment, (that, in addition to the consideration of the land expressed in writing, in the contracts of the 30th of December, 1867, the 14th of January, *1868, and said submission, it was also verbally agreed that the note for the original purchase-money was to be given up by him to plaintiff.) This testimony in () came in over the objection of plaintiff\'s counsel. It was shown that said note was never delivered up, and that suit on it had penned till just before this trial. Defendant\'s counsel also read in evidence said submission and award. Mrs. Tye\'s son then testified that his mother, in November, 1866, and since, refused to comply by giving possession, because (Lane had promised to get her another home and had not), he further testified that Mrs. Tye had paid Lane for the land in Confederate currency. This evidence in () the Court ruled out when he came to charge the jury. It was admitted that defendant was ready and willing to comply with said award. In...