McDonald vs. Beall. ecutors of Morris, is one year and nearly six months younger than their deed to the defendant. The plaintiff also read in evidence a deed made to him by the executors of Morris, for the one undivided half of the mill property, dated 15th of November, 1866. The defendant, who was examined as a witness in his own behalf, substantially corroborated the plaintiff's statement as to the manner and terms of the sale of the mill property, except that the defendant stated that it was the understanding at the time of the trade, that he was not to make a title to the plaintiff or be responsible in any way for the title, but only agreed to turn over to the plaintiff his interest in the mill property, and that he was to take it just as it was, and that he must look to his father and the Morris' for a title; that plaintiff never asked him for a title, or notified him in any way that he expected a title from him, or that he held him responsible for the purchase money of the mill, until he sued him; knew nothing of the deed having been made by the executors of Morris to him, until about a year ago when it was brought into court on the trial. The will of James Morris was read in evidence, by one clause of which his executors were authorized to sell the property, but was silent as to whether it should be sold at public or private sale.. 1. One of the alleged grounds of error in the motion for a new trial is, that the court rejected the evidence offered by the defendant to sustain his plea of set-off against the plaintiff. It was competent for the defendant to have proved the indebtedness of the plaintiff to him in relation to their mutual dealings under their contract for the sale of the mill property, as set forth in the defendant's plea, and the court erred in rejecting the evidence offered for that purpose. 2. The court also erred in refusing to allow the defendant to prove the value of the rent for the use of the property whilst in the possession of the plaintiff. The plaintiff sought to have the contract of sale of the property rescinded and to recover back the purchase money paid therefor, treating the property as the defendant's property. In that view of the case, the plaintiff was not entitled to recover back the pur McDonald vs. Beall. chase money paid for the property, without accounting for the use of it during the time he had it in his possession. 3. The court erred in ruling out that part of the defendant's evidence that he told the plaintiff, at the time of the trade, "that he must take the property as a man takes his wife, for better or for worse." The plaintiff had testified in relation to what was said and done at the time of the trade, and it was competent for the defendant, the other party, to testify as to what was said and done at the same time. 4. There was no error in ruling out the draft offered in evidence by the defendant. The draft was not drawn by the plaintiff on the defendant, but was drawn by another person and it was not shown what connection it had with the purchase of the mill property. The court erred in allowing O. T. Beall to testify, over defendant's objections, as to the sayings of Davenport and Harriet Morris, "that the consideration of the debt upon which the judgment and fi. fa that sold the property were founded, was the sale of the land by Davenport to Morris." This was hearsay evidence; and besides, it was irrelevant to the issue on trial. case. 5. There was no error in overruling the objection as to the juryman Grayson, because he was one of the jurors who had rendered a verdict for the plaintiff on a former trial of the The exercise of ordinary diligence would have enabled the defendant and his counsel to have discovered that fact before the trial. There was no error in refusing the defendant's written request to charge the jury in relation to the four years' possession of the plaintiff, as against the Morris judgment, on the statement of facts disclosed in the record. 6. The court erred in its charge to the jury, "that under the evidence in the case there had been an eviction of the plaintiff by paramount title." Whether there had been an eviction of the plaintiff from the possession of the mill property, under a paramount title, was a question of fact for the jury, under the evidence, and not a question for the court to decide. 7. The court erred in charging the jury "If you find, from McDonald vs. Beall, the evidence, that the plaintiff, H. O. Beall, while in possession, did pay defendant $1,738 29, upon a contract that defendant should give him good titles to said land when it was paid, and that he was afterwards evicted, you should find that amount in favor of the plaintiff against the defendant, with interest, if you see fit to find it." There is no evidence in the record of any contract that the defendant should give to the plaintiff good titles to the land when the money was paid, therefore this part of the charge was based on an assumed state of facts not proved by the evidence in the case. The court also erred in charging the jury "that if defendant suffered plaintiff to go into possession, under the agreement that he would make titles to plaintiff, and plaintiff paid him $1,738 29, and was thereafter evicted," etc. There is no evidence in the record of any agreement by defendant that he would make titles to the plaintiff for the land at any time. 8. The court also erred in the following charge: "I charge you that, under the writing in evidence, McDonald did not have a title." The court might properly have instructed the jury what was necessary under the law to constitute a title, but when it undertook to decide upon the evidence before the jury, it invaded their province; if the evidence was legally admissible to go before the jury, it was there for their consideration and judgment, and not for the judgment and positive declaration of the court. The court also erred in charging the jury, in view of the evidence in the record, “If defendant sold the plaintiff his interest in the lands, to be paid for by the plaintiff when titles were to be made, and the plaintiff afterwards vacated the land because it was sold at United States marshal's sale, under the fi. fa. in evidence, I charge you that this was a legal eviction." There is no evidence in the record that the defendant sold his interest in the land to the plaintiff to be paid for by the plaintiff, when titles were to be made. 9. The verdict was contrary to law and the evidence as applicable thereto, and the new trial should have been granted on that ground. In this state, there is no implied warranty McDonald vs. Beall. In this case there is no pre of title to land in the sale of it. tense that there was any express covenant of warranty of the title to the land sold by the defendant to the plaintiff, either by writing or by parol, if indeed a parol covenant of title to the land would have been binding on the defendant. 10. There is no evidence of any fraudulent representation by the defendant to the plaintiff as to the title which he had to the land at the time of the sale, or fraudulent conduct on his part which would have authorized the plaintiff to rescind the contract of sale on the ground of fraud. The plaintiff's own evidence is, that at the time of the purchase of the land from the defendant, there was nothing said about a title between them, and that he had never called on him for a title at any time. Although there is no positive evidence that the plaintiff knew all about the title of the defendant to the land when he purchased it from him, yet all the circumstances connected with the entire transaction, are of such a character as to lead the mind almost to the irresistible conclusion that he did know all about it at the time of his purchase. The plaintiff took a deed to the undivided half of the mill property, which he purchased from his father, from the executors of Morris, and when he applied to the defendant to purchase his undivided half of that same property, he says, that the defendant told him he would take the $1,000 00 he had paid out to the Morris', and what he had expended in repairs, etc. Did not the plaintiff know for what the $1,000 00 had been paid by the defendant to the Morris' for, which he agreed to repay to him in the trade, for his undivided half of the mill property which had been been once owned by the Morris'? To entitle the plaintiff to treat the contract of sale of the property as rescinded, and to recover back the purchase money paid therefor, he was bound to show either a breach of of a covenant of warranty of title by the defendant, or such fraud on his part in respect to the title, as would authorize a rescission of the contract on the latter ground. The evidence in the record does not show either a covenant of warranty of title, or any O'Connell vs. The State of Georgia. fraud on the part of the defendant which would in law authorize a rescission of the contract. In this view of the case under the evidence disclosed in the record, as well as for the numerous errors committed by the court on the trial, we reverse the judgment. Let the judgment of the court below be reversed. DENNIS O'CONNELL, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error. I. In order to convict the prisoner of receiving stolen goods knowing them to be stolen, the larceny of the goods and their ownership must both be proven, with reasonable certainty, as alleged in the indictment. 2. In accounting for the possession of the goods the prisoner, after proving that they were purchased and received in his absence by an agent, may show, as a part of the res gesta, what was said to such agent by the seller in respect to the title or ownership, at the time of the agent's purchase. Criminal law. Receiving stolen goods. Evidence. Res gesta. Before Judge BARTLETT. Chatham Superior Court. February Term, 1875. O'Connell was placed on trial for the offense of simple larceny. The indictment also contained a count for buying and receiving stolen goods, knowing them to have been stolen. The property thus charged to have been taken, and bought and received, consisted of old iron, railroad chairs, etc., alleged to belong to the Central Railroad and Banking Company. The defendant pleaded not guilty. The jury found him "guilty of receiving stolen goods, knowing them to have been stolen." The defendant moved for a new trial because the verdict was contrary to the evidence, and because the court refused to allow the defendant to show what was said to his agent as to the ownership of the property by the seller, at the time of the purchase, he having introduced testimony to show that the goods were purchased and received in his absence by his agent. The motion was overruled, and the defendant excepted. |