Whitehurst v. Holly

Beck, P. J.

The motion to dismiss the writ of error is without merit. It is based upon the ground that no service of the bill of exceptions upon J. D. George is shown to have been made, and that George is a necessary party defendant to the writ of error. George is not a necessary party. In section 6176 of the Civil Code it is provided that “When the record shows clearly who were the parties to the litigation in the court below, and the bill of exceptions shows that all who were interested in sustaining the judgment of the court below have been served, the writ of error shall not be dismissed because the bill of exceptions sets forth the parties differently from the record, or discloses that some party not interested in sustaining the judgment of the court below has not been served.” In no view of the case was George interested in sustaining this judgment. It fixed a liability upon him, when, if the judgment had been as the plaintiff insists it should have been, George would have been relieved of liability, and it would have been fixed upon Holly.

George executed a deed conveying certain lands to Holly for a valuable consideration; and the deed contained the stipulation, after reciting the existence of certain liens upon the land in favor of other parties, among them a mortgage to the plaintiff in this case, that “the grantee herein assumes and agrees to pay” the debts secured by the liens and mortgages before recited. Holly in his answer denied that the deed was delivered to him and accepted by him. The evidence as to the deliverance and acceptance of the deed was conflicting. If the grantee did accept it, he was liable under the clause which we have quoted above, as to the payment of the debts specified. Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 345); Union City Realty &c. Co. v. Wright, 138 Ga. 703 (76 S. E. 35); Williams v. American Tie &c. Co., 139 Ga. 87 (76 S. E. 675). The conflict in the evidence made a question for the jury, and the court erred in directing a verdict for Holly and against George, and in overruling the motion for a new trial, in which error is assigned upon the judgment of the court directing this verdict.

Judgment reversed.

All the Justices concur.