Rosser v. Harris

• Decision Date: 31 January 1873
• Citation: 48 Ga. 512
• Parties: Joel C. Rosser, plaintiff in error. vs. Peter C. Harris,defendant in error.
• Court: Georgia Supreme Court

48 Ga. 512

Joel C. Rosser, plaintiff in error. vs. Peter C. Harris, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Statute of frauds. Landlord and tenant. Before Judge Harvey. Polk Superior Court. August Term, 1872.

For the facts of this case, see the decision.

Wofford & Cox; Thomas W. Dood; J. W. H. Underwood, for plaintiff in error.

No appearance for defendant.

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant to recover the one-sixth part of the rent of a plantation in Alabama, which the plaintiff alleged the defendant had received for the year 1866, the plaintiff and defendant being the heirs, with others, of Andrew F. Woolly, deceased. The plantation, for which it is alleged the defendant received the rent for 1866, was the property of Woolly at the time of his death, in December, 1865. The plaintiff testified, at the trial, that the defendant had received the rents of the plantation for 1866, and had kept the same, and proved the value thereof, and also stated that he had paid his pro rata share of the taxes on the land for that year. The defendant proved by two or three of the other parties interested in the land as the heirs of Woolly, that in October or November, 1865, Woolly, before his death, made a contract with the defendant that if he would pay the tax on the land for the year 1866, he should have all the rents and profits of the land for that year. The defendant testified, that he instructed his agentin Alabama, Breedlove, to pay the taxes on the plantation for him for the *year 1866, and he had him charged with $100 00 as taxes paid on it for that year. A. F. Woolly, Jr., the son of the decedent, testified, that he did not know that the defendant had paid the taxes, as he had agreed to do, and he paid them for 1866, took a receipt and charged the same to the plaintiff and the other heirs; supposed he was paying them for defendant, under his agreement with A. F. Woolly, deceased. The jury, under the charge of the Court, found a verdict for the defendant. The plaintiff made a motion for a new trial, on the grounds specified therein, which was overruled, and the plaintiff excepted.

If this parol contract for the rent of the plantation, made in November, 1865, for the year 1866 is within the statute of frauds, still, there was such a part performance of it as will take it out of the operation of the statute. The defendant went into the possession of the...