Street v. Lynch , 38 Ga. 631 ( 1869 )

Brown, C. J.

1. The evidence in this case shows that Burnett had purchased the land in dispute from John G. Hanna and taken bond for titles and had paid him part of the purchase-money. The answers of A. B. Hanna and Mrs. Hanna (the father and widow of John G. Hanna) say that Burnett, when they made the deed to" Street, paid the balance of the purchase-money, which shows that part of it had already been paid. We think Burnett, by the purchase, taking bond for titles and the payment of part of the purchase-money, acquired an equity in the land, which he had a right to sell, and which was the proper subject of purchase by Lynch.

The evidence shows that Lynch, in good faith, bought the land of Burnett, and paid the entire purchase-money, and took bond for titles, and that Burnett deposited with him the grants from the State of Georgia, and promised to return home and pay the balance of the purchase-money to Hanna, and then make Lynch a deed. If Burnett had kept his promise and had paid the balance of the purchase-money to Hanna, Lynch would have had a perfect equity, if not a legal title to the land, the moment Hanna received the balance due for the land. But instead of keeping his promise, Burnett went home and sold the land to Street, before he paid the balance of the purchase-money to Hanna, and he and Street went to the widow and father of Hanna, and Burnett paid the balance due on the estate, and the judgment on the note that had been transferred, with part of the money which Street was to pay him for the bond, and at his request the Hannas made the deed, not to him for Lynch’s benefit, but to Street, the subsequent purchaser. Now the whole case Avould seem to turn upon notice. If Street, at the time he made the purchase, had notice of the sale to Lynch, he took subject to the rights of Lynch, and held the land as a trustee for Lynch, and the most he could claim Avas, that Lynch pay him the amount of balance of purchase-money paid by him to Hanna, when he was bound to make Lynch a deed and deliver the possession to him. See Code, 3036; Story Eq. Jurisprudence, secs. 395-400.

Hoes the verdict in Lynch’s favor, compensate Street, his trustee, for the money he paid to Hanna to perfect the title Avhich the finding requires Street to make to him ? We think the evidence is sufficient to sustain the verdict on that ground. The balance due for purchase money was $1,141 00. This Street paid in Confederate Treasury notes, worth, when paid, fifteen for one in gold. The amount in gold which Street paid 24th of August, 1863, was, therefore, only $76 00. Add five years and three months’ interest, $27 93, and we have $103 93. To this add one-third for the difference between gold and Federal currency, $34 64, and the total amount is, $138 67 in currency. The evidence shows that Street took possession of the land in the latter part of 1863. Hanna swears the ■ place was worth, for rent, $60 00 to $70 00 per annum. Now if no charge is made till the end of the Avar, Street is still chargeable for the rent for 1865 — 6— 7 and 8, four years, which would amount to more than the value of the Confederate money paid by him with interest and premium added.

2. The Judge charged the jury, that if Street had notice of Lynch’s purchase at the time of his purchase, the finding should be for Lynch; otherwise it should be for Street. We see no error in this charge; and as the evidence as to the time when Street received the notice is in conflict, and the jury found for "Lynch, we see no reason why' we should disturb the verdict.

But it is insisted that the Court should have charged as to the effect of rumors as notice. We are not prepared to say that there is lack of sufficient positive evidence of notice. But whether that be true or not, when the Court gave the above charge, if the counsel for Street were not satisfied with it, they should have asked the Court, in writing, to charge specifically on the effect of rumors as notice, and having failed to do so, they are presumed to have acquiesced in the charge as given. 10 Ga., 262; 13 Ga., 34; 20 Ga., 528; 26 Ga., 374; 28 Ga., 216; 37 Ga., 102.

After "looking carefully into the whole case, we think substantial justice has been done, and that the law has been faithfully administered.

Judgment affirmed.