Clark v. Whitehead

Montgomery, Judge.

1. The motion for the non-suit was based upon the idea that no eviction was shown by plaintiff under the judgment in ejectment. This point was abandoned on the argument and may be dismissed with the remark that it has been settled adversely to the position of plaintiff in error since Leary vs. Durham, 4 Georgia, 593.

2. Would any merchant who had sold an article to a purchaser and warranted it to be suitable to the purpose for which it was bought, have hesitated, in keeping his account, to allow a sum as a credit to the purchaser, which he had paid out for work on the article sold, required by a defect which existed at the time of sale? If the trade were rescinded, would not the purchaser’s account stand credited with the price paid, the interest thereon and the sum paid to put the article in proper order, and debited with the use of the article for the time he had used it ? The account, however kept, would embrace these elements.

What is the difference in principle between the case supposed and the one at bar? Why then was not the evidence of the amount paid by plaintiff to get his titles perfected admissible?

3. The plaintiff sought by- this suit to bind the estate for a breach of warranty, contained in a deed made by the executors. It was important to his recovery in this form of action, certainly to show the power of the executors to bind the estate by a warranty deed: Code, 2522. The bond of their testator not only empowered, but bound them to make a warranty title. Hence its relevancy as evidence for the purpose indicated. Possibly the will may give this power to the executors, but that, though introduced as evidence on' the trial, does not appear in the record. Further, the declaration contained a count for the breach of this very bond. We think the bond -was properly admitted.

4. The deed containing the warranty, for the breach of which the suit is brought, was executed between the first of June, 1861, and the first of June, 1865. The deed, with its covenants, however, was not the whole contract. The whole contract was the sale of the land on one hand, and the purchase of it on the other. The suit was for the enforcement of the contract, that is, for the recovery of damages for the breach of it; for evidently the language of the Ordinance of 1865 does not refer alone to suits for specific performance of contracts entered into within the specified time, if such suits are embraced within its provisions at all. But in a suit upon a contract, within the provisions of the Ordinance, either party may give in evidence the consideration or the value thereof at any time. What was the consideration of this contract ? The consideration on the one hand was the money received; on the other, the land transferred. If the deed, the paper title, was the only consideration the plaintiff received for his money, then he has no standing in Court. He has not lost that either by judgment or eviction, nor is he in any danger of doing so. The value of the money, as measured by gold was proven, why not the value of the land ? And certainly to enable the jury to render a verdict “upon principles of equity,” it is necessary that they should be enlightened as to all parts of the transaction; Elder vs. Ogletree, executor, 36 Georgia, 70.

5. It is unnecessary to add anything to the fifth point decided.

Judgment reversed.