Renew v. Butler

• Decision Date: 30 June 1860
• Citation: 30 Ga. 954
• Parties: RENEW. v. BUTLER.
• Court: Georgia Supreme Court

30 Ga. 954

RENEW. v. BUTLER.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

In Equity, from Sumter Superior Court. Tried before Judge Allen, April Adjourned Term, 1859.

James Butler, as trustee for his wife, Mary Butler, filed his bill in equity against Timothy Renew, for discovery and account.

He alleges, that in the year 1836, he and his wife being in possession of a certain parcel of land in said county, the defendant, Renew, the brother of said Mary Butler, executed to him in trust for his wife during her life, remainder to her children at her death, a deed of gift for the said parcel of land, and which was duly recorded; that although the deed was in form a gift, yet the said Renew received from complainant a full, valuable consideration therefor.

It is further alleged, that the said complainant and wife being about to remove to Baker county, deposited said deed of gift with said Renew, and put him in possession of said land as their agent to take care of, rent out, etc., for them; that there were some thirty acres of the land then in a high state of cultivation; there were good improvements on the place, and the whole were worth $500.00.

The bill charges, that said Renew failed to account for the rents, issues and profits thereof, and denies title in complainant, and prays for a discovery and account concerning his actings and doings in the premises.

The answer of defendant admitted the facts stated in the bill in relation to the deed of gift, and the moving of complainants to Baker county; also, that defendant had beenrequested to rent out the land for complainants, and that he had done so and accounted to said Butler for said rent. He denies that he was appointed as complainant's agent to look after the said land; admits the premises to have been worth some three or four hundred dollars.

It is further stated, that in 1843, the premises were levied on by virtue of a fi. fa. against James Butler, when the latter tried to get him, defendant, to claim the same as his own property, which defendant refused to do—the same being in fact the property of said James Butler, he having paid for it with his own means; that afterwards the land was sold by the sheriff at public sale and was bid off by William Minis, to whom the sheriff executed a deed therefor, and that he, defendant, afterwards, in the same year, in good faith purchased the same from said Mims, receiving a deed therefor, under which he has claimed the land ever since in his own right; that said James Butler had notice thereof, made no objection, and ceased thereafter to claim or receive rent. Defendant did say, on several occasions, that he had purchased the land with the view of letting Mrs. Butler, who was his sister, have it back, as an act of brotherly kindness and favor, and would have done so if application for it had been made in a reasonable time.

On the trial, the complainant made proof of the value of the land and improvements, which corresponded with the statements in the bill; also, that the cleared part of the land, being in 1843 some fifteen or twenty acres, was worth about $125.00 per acre.

Complainant here rested his case—the deed of gift having been previously put in evidence.

The defendant then read in evidence the deed from the sheriff to William Mims, dated 4th day of April, 1843, duly recorded; also, the deed from Mims to defendant, Renew, dated 31st day of October, 1843, recorded in 1834.

Defendant then introduced Green M. Wheeler, who testified: That he levied on and sold said land to William Mims, as sheriff, as...