Mariner v. Rodgers ( 1858 )

By the Court.

Benning J.

delivering the opinion.

The action was on the bond given by Mariner and Roberts to Rodgers.

The condition of the bond was as follows: “that if the said Mariner and his wife, A varilla S. Mariner, shall, on the 28th day of December next, or thereafter on demand, deliver to said Rodgers, or his order, possession of the north half of the lot in the city of Columbus, in said county, known and distinguished in the plan of said city, as lot No. 137, with the present improvement thereon, provided, said Rodgers shall upon a similar demand, at the same time, deliver possession to said Mariner or wife, of that parcel of ground, lying in the said county, in the Coweta reserve, and known as the south-east quarter of the one hundred acre lot, No. 114, in said reserve, and containing twenty-five acres, then this bond to be void, else to remain in full force and virtue.”

A breach of this condition, by Mariner, was alleged in the declaration.

This condition expresses a stipulation for an interchange of mere possession} it is silent as to what is to be the estate that is to accompany that possession.

Now possession is a thing that may be accompanied by any estate; as, by an estate at will.; for years; for life; in fee.

Consequently, it will be entirely consistent with a right of possession, that the person entitled to the right, has an estate at will; or an estate for years; or an estate for life; or an estate in fee. At least, it will be quite as consistent with this right, that he has an estate for life or one in fee; as it will be that he has an estate but for years.'

Thus, then, the bond only saying, that Rodgers was to have the possession, — being silent as to the quantity of estate he was to have with the possession, it would be consistent with the bond that he was to have any quantity of estate; quite as consistent with it, that he was to have the fee, as, that he was to have but a term of years.

The Court below admitted evidence offered to show, that the estate which it was intended should accompany the possession, was an estate only for years, but refused to admitevidence offered to show, that such estate was one in fee.

It follows, from what has been said, that the Court must have erred in refusing to admit the latter evidence or in admitting the former.

Judge Lumpkin and I, think that the Court erred in refu- ' sing to admit the latter. Judge McDonald thinks the Court erred in admitting the former.

The other grounds of the motion, depend on the ground first disposed of. Obviously, the measure of damages, depends on the quantity of interest which was to be interchanged with the possession.

New trial ordered.