Peterson v. Lott

• Decision Date: 21 February 1946
• Docket Number: 15405.
• Citation: 37 S.E.2d 358,200 Ga. 390
• Parties: PETERSON v. LOTT et al.
• Court: Georgia Supreme Court

37 S.E.2d 358

200 Ga. 390

PETERSON v. LOTT et al.

No. 15405.

Supreme Court of Georgia

February 21, 1946

Syllabus by the Court.

1. It is not contrary to the best evidence rule that oral testimony of a fact in issue may be primary evidence of the fact although there is written evidence thereof, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is merely collateral or incidental.

2. A perfect equitable title, resulting from full payment of the purchasemoney, will support an action in ejectment. A renewal suit brought in ejectment on the theory that the full purchase-money was paid subsequently to the execution and delivery of a bond for title does not show the election of a remedy inconsistent with a suit in ejectment brought on the theory that the full purchase-price was paid prior to the execution and delivery of the same bond for title.

To the March term, 1939, of Coffee County superior court Emmett L Peterson brought an action in ejectment against Stanford Lott to recover a described city lot and mesne profits. As here necessary he alleged: That he purchased the land sought to be recovered from B. Peterson in 1907, and paid him the full purchase-price therefor. He took no deed, but in connection with his purchase the grantor executed and delivered to him a bond for title. He was interested in a partnership which was financially involved and wanted to settle its affairs before taking his deed. He attached to his suit a copy of the bond for title, which obligated the maker to convey to him the described land on payment of two notes for $500 each, due six and twelve months after date. He amended his petition by alleging that B. Peterson had given him a note on or about April 6, 1906, and that on May 20, 1907, he purchased the land in controversy and paid for it by extinguishing the obligation evidenced by the note, which was for $1,000. The record shows that the petition was further amended by having counsel, in open court, attach a sheet to the face of the first amendment, alleging that on or about March 23, 1915 the full purchase- price for the land was paid to B. Peterson. During the trial, at the October term, 1939, a nonsuit was granted on the grounds that the evidence did not show that the bond for title had been complied with, and that the plaintiff would not be heard to controvert the terms of the bond for title by showing full payment of the purchase-price prior to the date of the bond. On February 20, 1940, after paying the accrued costs, the plaintiff renewed his suit in ejectment in the same court, against the same party and for the same cause of action. The defendant vouched his warrantor, Lonnie A. Pope, into court as a party. In that petition, in so far as it is material here, he alleged: that he purchased the land from B. Peterson, and accepted a bond for title, copy of which he attached as an exhibit, obligating the maker to convey to him the land in controversy on the payment of $1000, which was fully paid during the latter part of 1911 by the settlement and extinguishment of the obligation of a note, dated on or about April 6, 1906, for $1000, due by B. Peterson to him. By amendment he struck his exhibit and all reference to the bond for title and alleged: that on May 20, 1907, he purchased the land in controversy from B. Peterson, and paid him the full agreed purchase-price of $1000, by the cancellation of an obligation evidenced by a note for that amount due by B. Peterson to him. The plaintiff was unable at that time to surrender the note because it had been lost or misplaced. The land was then a vacant city lot, but constructive possession of it was delivered to him. He and B. Peterson measured it, set up corners, and full title was at that time vested in him. Pending efforts to locate the note, B. Peterson was to return the lot for taxes, along with his lands, and no interest was to be charged on the note. About March, 1915, which was just a short time prior to the death of B. Peterson, the plaintiff gave his written receipt to him for the note. The receipt showed the full payment of the land in question by extinguishment of the obligation of the note. B. Peterson at that time agreed to execute and deliver to him a proper deed for the land in controversy, but died without having ever done so. After giving a receipt for the note, the plaintiff returned the land for taxes and annually paid them. This suit (as alleged) is a renewal of one between the same parties, in the same court, and for the same cause of action, nonsuited at the October term, 1939. The renewed suit went to trial at the October term, 1945, and after the plaintiff had introduced his evidence and rested, the defendant, for the first time, presented a writing which he denominated 'his defense of waiver by election.' To this writing he attached as exhibits: (1) the original petition filed to the March term, 1939, together with the amendment thereto; (2) the demurrer thereto, with the order overruling it; and (3) the judgment of nonsuit. The averments of the writing were that the plaintiff in the first case had based his suit on the affirmance of the bond for title, and the renewed action on the inconsistent position of an abandonment or disaffirmance of the same bond for title; and that the first suit had been instituted and prosecuted with knowledge of all facts necessary to show the election of a remedy inconsistent with the one now here employed. The court entered this order: 'The within defense having been sustained by evidence, and no counter-showing having been made by the plaintiff, it is ordered that the plaintiff's petition, as amended, be and the same is hereby dismissed.' Exception was taken to this order, and the case comes to this court on a direct bill of exceptions.

E. S. Chastain, E. L. Grantham, and Heath & Heath, all of Douglas, for plaintiff in error.

D. C. Sapp, of Douglas, for defendants in error.

CANDLER Justice (after stating the foregoing facts).

1. The plaintiff introduced in evidence, without objection, numerous tax receipts for State, county, and city taxes, canceled checks, and drafts which he has...