By the Court.
Lumpkin, J.,delivered the opinion.
Needham W. Collier sold to Hartwell H. Tarver a tract of land, No. 120, in the 8th district of formerly Early, now Baker county, which Collier bought from one Nathan Johnson. Collier made a warranty deed to Tarver, and at the same time, turned over to Tarver the deed from Johnson to himself. Tarver conveyed the land in trust to Henry S. Wimberly, for the three minors of Frederick D. Wimberly, deceased. An action of ejectment was brought against Henry A. Tarver, the tenant in possession, by Mrs. Eliza McKay, to recover the lot of land, and a judgment rendered in her favor for the premises, besides mesne profits and costs. Collier was notified of this suit, and was present defending it with his counsel. The mesne profits being excessive, or rather awarded on the testimony of a witness who was mistaken as to the locus of the land, a proceeding was instituted in Chancery, to have the error corrected; and they were written off.
Wimberly, the trustee, now sues Collier for a breach of his covenant of warranty, and seeks to recover the price paid by Tarver for the land, with interest, together with *19counsel fees and costs of the litigation. The jury, under the rulings of the Court, found a verdict for Collier. A motion for a new trial was made on various grounds, and amongst the rest, because the verdict was contrary to the evidence: The application was refused, and this decision Avas excepted to, and is now assigned as error.
Owing to the defect in the bill of exceptions, the charges of the Court in the case, and various other rulings complained of in the progress of the trial, cannot be considered—the presiding Judge having failed to certify that they were true.
But it is enough for the purposes of this decision, to examine the proofs, and see whether the finding was not against the evidence.
It is in proof that Collier had notice of the ejectment suit; that he was present at the trial, defending the action by his counsel. He seeks to avoid a recovery upon the ground that he applied to H. H. Tarver, to Avhom he turned over the deed from Nathan Johnson, under which he claims, and that he refused to let him have the deed.
This deed was not necessary to the defence of the action. The land was granted to Mrs. McKay, the plaintiff in ejectment, as a widow. Collier claims under N. Johnson, who he alleges, was the husband of the grantee. He had! only to shoAV the intermarriage of Mrs. McKay, the grantee, with Johnson, and that would have shown title, out of her. But this he failed to do on the trial of the ejectment. Had the deed from Johnson to him been present, it M'ould have availed him nothing, without this additional proof; and that proof would have defeated a recovery without the deed ; and this proof he failed to make in the present action, which was essential to his defence.
The truth probably is, he can never make this proof. The grantee of this land residing always in the city of Savannah, and most respectably connected, never was the wife of Nathan Johnson, nor of any other Johnson, nor of anybody else, since the death of her first husband, as the proof in this record abundantly demonstra) es. Nathan Johnson, the grantor of Collier, may have married some other woman—
*20some other widow of that name; whether he did or not, does not appear.
We think, then, the record of the recovery in ejectment, entitled Wimberly, as trustee, to recover the price paid by H. H. Tarver for the land, with interest thereon, and the costs of that suit.
A claim is set up for counsel fees in the ejectment cause, and the bill subsequently filed to get rid of the $850 mesne profits; and there is respectable authority which holds that this is a legitimate item in the assessment of damages for a breach of warranty in the sale of land. If so, why not of personal property ?
Without deciding this question, which our Courts have not favored, we think the want of diligence on the part of Tarver, in defending the ejectment, and the fact that Collier did employ counsel himself, is suffieint to negative this claim in the present case.
Judgment reversed.