Doe ex dem. Dearmond v. Roe

By the Court.

Lyon, J.,

delivering the opinion.

My recollection is, that this case was decided upon quite a different state of facts from those that appear in the Reporter’s statement. In fact, I know that we ordered a judgment of affirmance upon the following understanding, in addition to the reported facts, although the record itself is correctly reported: That the defendant put in evidence an exemplification of a judgment previously had in that Court, on a statutory form of action at the suit of John R. M. Neel against the defendant, in which there was a recovery by the defendant of the same lot of land in controversy in this suit, and then introduced and put in evidence a deed from the plaintiff, Dearmond, to said John R. M. Neel, dated previous to the recovery in the suit by Neel against Brooking. How these facts appeared to the Court, I have no recollection — whether by agreement of counsel or from the mistake of the Court alone in looking to the decision in the same case reported in 27th Ga., 52. So understanding the facts, I give the opinion of the Court in accordance therewith, promising that, if we were mistaken, I cannot say what would have been the judgment of the Court in the facts, simply as reported. I certainly, on those facts alone, should not have consented that the verdict should be disturbed.

My recollection, further, is, that when this testimony of the defendant came in, the. plaintiff amended his declaration by adding a new demise from John R. M. Neel. There was also a demise from Dearmond for the use of Neel.

On these facts, the plaintiff was not entitled to a verdict.

Not on the demise from Dearmond, because the deed from him to Neel conveyed the legal title out of him. Nor on the demise from Neel, because the judgment recovered in the former suit barred his right to recover. See Sims vs. Smith, 19 Ga., 125. Nor on the demise from Dearmond, for the use of Neel, because the deed to Neel conveyed the equitable, as well as the legal title to Neel. So a new trial was properly allowed by the Court below. Of course, if it be true as was suggested in the argument, that the verdict in the first case was rendered in consequence of Brooking’s adverse holding of the premises at the making of the deed by Dearmond to Neel, and the ruling of the Court, that that fact would defeat the plaintiff’s right of recovery, that, in my opinion, would make a very material difference; but that does not appear in the record. I think, too, the plaintiff, in that case, would have trouble in getting along at law.

Judgment affirmed.