Mcdonald v. Beall

• Decision Date: 31 July 1875
• Citation: 55 Ga. 289
• Parties: Edward McDonald, plaintiff in error. v. Henry O. Beall,defendant in error.
• Court: Georgia Supreme Court

55 Ga. 289

Edward McDonald, plaintiff in error. v. Henry O. Beall, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Vendor and purchaser. Rescission. Evidence. Jury. New trial. Title. Charge of Court. Warranty. Before Judge Tompkins. Randolph Superior Court. May Term, 1875.

Reported in the decision.

H. & I. L. Fielder, for plaintiff in error.

A. Hood; B. S. Worrill, for defendant.

Warner, Chief Justice.

The plaintiff alleges in his declaration that the defendant is indebted to him in the sum of $1,750 00, which sum he paid defendant under a contract for the purchase of certain described mill property in the county of Randolph, of which he took possession, and was afterwards turned out of the possession thereof by paramount title.

On the trial of the case the jury, under the charge of thecourt, found a verdict for the plaintiff for the sum of $1,728 29. *The defendant made a motion for a new trial on the several grounds set forth therein, which was overruled by the court, and the defendant excepted.

When this case was before this court on a former occasion, (E. McDonald v. H. O. Beall, 52d Georgia Reports, 576,) the plaintiff based his right to recover on the theory that having purchased the land of the defendant and paid for it, he was bound to make him a good title thereto, and as he had been evicted from the possession of the land by a paramount title to that of the defendant, he had the right to treat the contract of purchase as rescinded, and to recover back the purchase money paid for the land. The defendant in the court below demurred to the plaintiff's declaration on the ground that the plaintiff had not alleged that the defendant had covenanted to warrant the title to the land. The court below overruled the defendant's demurrer, and this court affirmed its judgment, for the reason that the plaintiff might show by evidence at the trial such fraudulent representations by the defendant as to his title, or such fraudulent conduct in relation thereto as would entitle the plaintiff to recover back the purchase money independently of any covenant of warranty of title to the land. On the former hearing of the case it was held and decided that under the evidence contained in the record then before it, the plaintiff had failed to show an eviction by paramount title to that of the defendant, and on that ground, this court reversed the judgment and ordered a new trial.

It appears from the evidence in the record of the last trial, that in 1865, O. P. Beall, the father of the plaintiff, purchased the mill property from the executors of James Morris, deceased, the defendant being equally interested in the purchase thereof, took their bond for title, paid $1,000 00 for his half of the mill property, and the defendant paid $1,000 00 for his half of it. On the 15th of November, 1866, the executors of Morris made a deed to the defendant of one undivided half of the mill property, the witness, O. P. Beall, could not state whether defendant ever saw or knew of the deed to him. O. *P. Beall went into bankruptcy in 1868. O. P. Beall sold his interest in the mill property to his son, the plaintiff, at what time the record does not show.

The plaintiff testified in his own behalf, that for a debt due to him by his father, O. P. Beall, he bought a half interest in the mill property from him, and went into the possession thereof, with the understanding that his father held a bond for title from the executors of Morris, and that he would not take a title from his father, O. P. Beall, but that his title was to be made to him from the executors; that after plaintiff had bought his father's half of the mill property, he proposed to defendant to sell, or buy his interest in it; defendant preferred to sell, and offered to take the $1,000 00 he had paid to the executors, andwhat he had expended in repairs, and which was due him by Beall & McDonald; defendant, on looking at his books, thought the amount would be about $1,750 00; that there might be a few small items not entered; plaintiff agreed to pay defendant that amount, he stating that he could not tell the exact sum; the payments to be made in installments of $100 00 per month, until the whole amount was paid, which has been done. There was nothing said about a title to the property between plaintiff and defendant; took no deed or other obligation in writing of any kind; never called on defendant for a deed, or title at any time. This is the version given of the trade by the plaintiff himself. The plaintiff, or his father, has been in possession of the property all the time, the latter claiming now to be in possession under a contract made with Smith, the purchaser at the marshal\'s sale under an execution against the executors of Morris. The plaintiff read in evidence an execution from the district court of the United States, in favor of Davenport, against the executors of James Morris, issued on a judgment obtained on the 1st of May 1868, against them, which had been levied on the mill property, as the property of James Morris, deceased, which property, with other property levied on at the same time, was all sold for the sum of $700 00 and purchased by Smith, on the 6th of December, 1870. The judgment against the executors *of Morris, is one year and nearly six months younger than their deed to the defendant. The plaintiff also read in evidence a deed made to him by the executors of Morris, for the one undivided half of the mill property, dated 15th of November, 1866. The defendant, who was examined as a witness in his own behalf, substantially corroborated the plaintiff\'s statement as to the manner and terms of the sale of the mill property, except that the defendant stated that it was the understanding at the time of the trade, that he was not to make a title to the plaintiff or be responsible in any way for the title, but only agreed to turn over to the plaintiff his interest in the mill property, and that he was to take it just as it was, and that he must look to his father and the Morris\' for a title; that plaintiff never asked him for a title, or notified him in any way that he expected a title from him, or that he held him responsible for the purchase money of the mill, until he sued him; knew nothing of the deed having been made by the executors of Morris to him, until about a year ago when it was brought into court on the trial. The will of James Morris was read in evidence, by one clause of which his executors were authorized to sell the property, but was silent as to whether it should be sold at public or private sale.

1. One of the alleged grounds of error in the motion for a new trial is, that the...