Newton v. Mayo

Bleckley, Justice. 1. It appears from the record, reading the transcript in full, that the Boyds are so related to the possession as that the original possession of James W. Boyd, has come down regularly to Mayo, the defendant in this suit, who went in as tenant under James O. Boyd. The point made by counsel touching the good faith of the possession at its commencement, is directed at James W. Boyd’s possession exclusively. How, then, did it commence ? Cheever sold three lots, one of which is the premises in dispute, to James W. Boyd, in 1858, for $2,500.00 each, making $7,500.00. Boyd took Cheever’s bond for titles, and gave him three notes, each for $2,500.00, one due in February, 1859, one in January, 1860, and one in January, 1861. Cheever sold these notes to Jordan, at what precise time does not appear, but most probably previous to February, 1859 ; for James O. Boyd testifies .the notes were all paid at maturity, and the evidence indicates that all of them were paid to Jordan. No deed from Cheever to Jordan is produced, but there is a statement in one of the writings that such a deed was made ; and that is in harmony with the course of events afterwards. In January, 1860, Jordan made a bond for title to James W. Boyd, with an agreement reciting that Jordan had purchased the notes from Boyd, that the first note had been paid to Jordan, and that the second was about to be paid, etc. The stipulation was that Jordan was to convey when all the notes were -paid. On the 26th of March, 1861, Jordan did convey all three of the lots to James W. Boyd, by deed, with the-usual warranty of title. The deed acknowledged the payment of the purchase money in full. During this latter year, whether before or 15 after the deed was made does not appear, Boyd’s actual possession of the particular lot now in controversy commenced, and no suspicion attaches to it, or ever did attach to it, so far as appears, but what may arise out of the following additional facts : The true paper title was in John H. Newton, under whom Oheever held by bond for title only, with the purchase money not fully paid. If this had been known to Boyd in due time, it might, and perhaps would have prevented his subsequent possession from being bona fide as against Newton ; and the question is, whether he acquired notice early enough to effect his conscience and make his subsequent actual possession fraudulent. There is no suggestion that he had any notice whatever of any want of full legal title in Oheever, at the time of the purchase, nor until he had paid off the first note, if it be true that he paid it at maturity. The letter to him from Oheever, which is relied upon to affect him with notice, is dated June 9th, 1859; and the letter from Slaughter & Ely (who seem to have been his own legal advisers) is of still later date. But even if the first note was not paid off, it is certain, from this same letter of Oheever, that it, or one of the other notes, or all three of them, had previously been transferred to Jor dan, and as they were notes, and were negotiated at some time, they should be presumed to have been negotiable upon their face, the contrary not appearing; and, moreover, there being no evidence tending to show that Jordan acquired them after due, the presumption holds that it was before they became due, a presumption which the evidence, as far as it goes, agrees with and strengthens. There is no evidence that Cheever indorsed them, or that Jordan had any notice of Cheever’s want of full title to the land. Thus, when Boyd became affected with notice that he had purchased from a person whose title was incomplete, he had paid one of the notes, which covered as much of the aggregate purchase money as either of the lots sold for ; or if he had not then paid anything, one of the notes or all three, had been transferred to a bona fide holder for value, to whom 16 all of them were afterwards paid. We think he was not obliged to abstain from taking possession of the land, if he had either paid for it, or become bound to pay to an inno cent transferee, before notice reached him. Even less than this might perhaps serve. 55 Ga., 497 (5). It seems to us that after having innocently bought the land, and been brought into a position where he was obliged to pay for it, he might, after paying for it, hold it adversely under either a deed or a bond for title. This would not defeat the better title until seven years 'had elapsed without suit, and in the meantime, there would be a ehance for all parties to get justice by the first purchaser (Cheever) paying up the balance due to the first vendor (Newton). The adverse possession might thus result in no injury to any one. 2. The charge of the court is open to question, bat concede it to be erroneous, or not to apply strictly to the facts, in evidence, the verdict was correct, and a new trial is not needed. When there is already a proper verdict, it may be assumed that another trial should and would result in another proper verdict — that is, in a second just like the first. One of the right sort is enough. The possession was adverse, under color of title and claim of right, and was continuous for more than seven years before suit was brought. The interval was from 1861 to April, 1869. Judgment affirmed.