Brown v. West , 70 Ga. 201 ( 1883 )

Jackson, Chief Justice.

This is a writ of error to the refusal of a new trial by the •court below. The property was levied on by a mortgage fi. fa., as belonging to the defendant in that fi. fa.; his wife claimed it, because her money paid for it, and "because, when the mortgage was made by her husband, the plaintiff had notice that her money paid for it.

1. The evidence before the jury is conflicting on the question of notice. The plaintiff swears that he had none; the defendant swears that he told him that the land was his wife’s, and that her money paid for it. The jury believed the defendant; the court below ratified their verdict ; this court does not interfere in such cases.

2. The court charged that, if the jury believed from the •evidence “ that plaintiff gave credit to the defendant inyi. fa., on the faith of the land in controversy, and had no knowledge of the secret equity of claimant, that they ought to find for plaintiff. But if they believed that plaintiff did not give credit to defendant on the faith of the land, and did have knowledge of the equitable claim of claimant, then they ought to find for claimant.” Error is assigned here, that this charge is erroneous in relation to plaintiffs giving credit to the defendant on the faith of the land.

We do not see the error. The evidence is uncontradicted that the wife’s money paid for the land. If so, it was hers, unless plaintiff’s mortgage took it from her, because the legal title was in the defendant, and plaintiff did not know of her equitable title, and not knowing it, credited defendant on the idea that he had title to the land. If he credited him on other property, he was not hurt'by this equitable title being unknown.to him; but if he credited him on the belief that the title, the good, complete title, was in him, then he was hurt by the claimant’s setting it up, when he was ignorant of it. The court, we think, put the issue squarely on the facts on which the law would decide it between the parties, and the judgment is affirmed.

Judgment affirmed.