Martin v. Atkinson , 7 Ga. 228 ( 1849 )

By the Court. —

Lumpkin, J.

delivering the opinion.

Martin filed his bill against Atkinson, alleging that he purchased of defendant a tract of land in Pike County, for which he gave him a lot in Dooly, No. 247, 2d District, and his notes for $500 ; that he took a bond for titles, and' went into possession; that shortly thereafter an execution against Atkinson was levied on the land, whereupon he applied to have the contract rescinded ; but upon being assured by the vendor, that the incumbrance should he removed, and that if he lost the land he should he fully remunerated for all the improvements which he might put upon it, he proceeded to clear ground and erect houses, and made other permanent and beneficial improvements on the premises, to the value of $400; that the land was again levied on and sold, under and by virtue of the lien which was outstanding at the time of the contract, and bought by one Mangham, at and for the sum of $245; that he was evicted by the Sheriff, and possession given to Mangham; that subsequently Mangham sold to Neal and Neal to complainant. The prayer of the bill is, that the notes given in payment may be cancelled, the Dooly land re-conveyed, and compensation made for the improvements.

The original answer substantially admitted all the charges in the bill, except as to the agreement respecting the improvements. Afterwards, the defendant having obtained leave, amended his answer, and denied that the transfer of the Dooly land constituted any part of the price given for the tract in Pike; but stated that it was conveyed on other and distinct considerations altogether.

[1.] During the progress of the trial, witnesses were introduced by the complainant, to prove the identity of the lot of land in Dooly County, by what they heard the neighbors and one Brown, the occupant, say, which evidence was rejected by the Court on the ground that it was hearsay.

Ancient boundaries, corners and station trees cannot, generally, be established otherwise than by reputation. Hence, this species of evidence is admissible for this purpose, from the necessity of the case. 2 Pitt. 159. But this case does not fall within the rule. There was obviously higher and better evidence of the identity of the land in the power of the party, and therefore, that tendered was properly rejected. 12 Vermt. 178. 24 Pick. 71. 5 Watts & Serg. 60. 1 Strobhart, 246.

These pleadings present rather a novel question, which we will forbear to discuss, inasmuch as it is unnecessary to do so. The original answer admits, distinctly, that the lot of land in Dooly made a part of the price of the Pike tract. The amended answer expressly denies that it did, and states that the previous acknowledgment was made by mistake. Which is the answer of the defendant ? Both, or the latter as amended 1 May the last statement be discredited by the first ? Or does it still require two witnesses, or one and corroborating circumstances, to disprove the answer 1

After the testimony had closed, the Court charged the Jury, in substance, that the contract between Martin and Atkinson was still subsisting, and that'they might set off against the notes which he gave for the land, the amount of injury he had sustained; intimating that if he had bought the land from Neal for less than he was to pay Atkinson, that he was not damaged.

[2.] In the opinion of this Court, the sale by the Sheriff was an eviction in law, and vacated the contract. Nor was the $400 paid by Martin to Neal the proper measure of damage for tho injiiry done to Martin. Indeed, it had nothing to do with the matter.

[3.] Whenever a vendee, in order to protect his title, takes up an outstanding incumbrance, he is entitled only to be refunded the amount paid.

[4.] But when the property is, bona fide, sold under a mortgage or judgment lien, existing at the time of the contract, without fraud or contrivance on the part of the vendee, and the vendee re-purchases, the price which he pays is no criterion whatever of the damage sustained. Suppose Neal or Mangham had given the land to Martin, would that have relieved Atkinson from his liability 1 What right has he to profit by the good fortune of the other party ? Then, on the other hand, suppose Martin had seen fit to give $1000 to retain the land, surely Atkinson would not have had to bear the loss.

[5.] As to the right of Martin to recover compensation for the value of the improvements which he put upon the land, over and above the rents and profits while he occupied it, it would seem to be founded on the clearest principles of equity. Atkinson got the benefit of these improvements — what justice would there be in not making him pay for them 1

Judgment reversed.