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Driver vs. Maxwell.

ises unless there was an express contract at the time of rental that plaintiff was to repair the fence; that plaintiff was not required to keep the fences in repair if the fences were not in repair at the time of renting ; that if defendant failed, for any cause, to gather the crops in proper time, and the same were injured and damaged, that defendant was still liable to pay plaintiff rent for the amount of corn and cotton made on the place.” This charge, when we look at it in connection with the request which preceded it, and when we analyze it, means this : that when the fence is defective when the farm is rented, and the tenant sees it and knows the defect, he makes his bargain in reference to its then condition; he agrees to pay so much rent for it as it stands, and the landlord is only bound, on notice, to keep it as good as it was; he should have notice if it gets worse, and if, as in the case at bar, the tevant fail to give any notice or to keep the fence in the conclition it was, and for any cause, by cattle or storm or sickness he fail to gather it, he still must pay rent for what he makes. His contract is to pay one-fourth and one-third of cotton and corn he makes. To make, means to gather and house, to fit it for use or market. If after he lays by the crop, for want of keeping up the fence himself and charging the landlord for it, or for want of notice to the landlord; if for this neglect of a most reasonable duty on his part, the crop is lost or destroyed in whole or in part, he should still. pay the rent. And such I take to be the meaning of the statute, (Code, sec. 2284.) It makes him liable to keep the premises in repair. What repair? The repair they were in when he rented them. Who will know if they get out of repair? The tenant, because he occupies and uses them. How shall the landlord know? By notice from the tenant; he is absent, he can know in no other way. It is no hardship on the tenant to notify him; it is a hardship on him to visit the tenement or farm and pry out leakages or deficient fences. There is no evidence in this record that this tenant ever notified the landlord when this fence got worse, if it did. It is probable that it did get so from the wiud and storm and the natural

Driver vs. Maxwell.

decay. No damage is complained of till the gathering of the crop, and the storms poured and the winds blew and the sickness came about that time, and the fences fell then, most probably because of the storms, and were not repaired because of the sickness. This construction accords, too, with the decisions of this court, that notice must be given by the tenant in such a case, or he must repair and charge the landlord and take it out of the rent. The duty is on the landlord to keep in repair, but the duty is on the tenant to inform him when it is needed. It was so decided in Vason vs. City of Augusta, 38 Georgia Reports, 542, and again held in Whittle vs. Webster, 55 Georgia Reports, 180. In the latter case the chief justice said what I say here: "If a tenant should rent a dilapidated or leakey store-house, with full knowledge of its actual condition, at a reduced price in consequence thereof, and puts his goods therein, and the same are damaged, he would not then have any legal or just cause of complaint against his landlord.” And again, he said, “and, if after the premises have been rented, the same become unfit by reason of the roof of the house becoming leaky, or other similar cause, so as to render the house unsuited for the purpose for which it was repted, the landlord is bound, upon notice being given to him of the defect by the tenant, to make the necessary repairs within a reasonable time thereafter, and upon his failure to do so, and damage results to the tenant's goods in consequence of such failure to make the necessary repairs, the landlord will be liable therefor.'

In this opinion Judge BLECKLEY and myself concurred. I adhere to it, the tenant must give notice to the landlord to repair. The rule, just everywhere, is the more expedient in the farming operations of our people.

It becomes all important in cases of this sort not to extend or expand the rule one iota in favor of the tenant. As a practical question, it pervades the state and its great agricultural interests every where; and it is all-important, in my judgment, so to construe the act as to require the tenant to notice his fences and tell the landlord that they need repair,

Boyd vs. Chappell. or hold him responsible for his neglect. For these reasons I dissent from the judgment of this court, and would affirm that of the court below.

SARAH J. Boyd, plaintiff in error, vs. ALEXANDER CHAP

PELL, defendant in error,

When vendor sold lands to vendee and gave bond for titles and possession,

and part of the purchase money having been paid, made a deed thereto after obtaining judgment for the balance of purchase money un:ler section 3586 of the Code, and the wife of the vendee filed an equitable plea that her husband, in the payment made, had used her money with the knowledge of the vendor, and had made her a deed to the land, and she prayed that the verdict and the judgment should be so moulded as to protect her rights and give her the land, or if sold, enough of the proceeds to reimburse her, but did not allege in the plea, or prove on the trial, that the vendor was insolvent, or that for any other reason she could not sue and re

cover from him : Held, that while she may recover from the vendor the money so applied with

his knowledge, she has no equitable claim to the land, or lien thereon, or on its proceeds, or any part thereof, until all the purchase money has been paid, the vendor being solvent and able to respond to her for her money so received by him, should she see fit to sue therefor.

Claim. Vendor and purchaser. Husband and wife. Before Judge CLARK. Walker Superior Court. September Term, 1875.

Reported in the opinion.
John R. WORRILL, for plaintiff in error.

GUERRY & Son, for defendant.

JACKSON, Judge.

Alexander Chappell sold a tract of land to Uriah Boyd. Boyd paid one-half of the purchase money, $600 00. Chappell sued and recovered judgment for the other half, and having made Boyd a deed to the land, a bond for titles having

Boyd vs. Chappell. been given therefor, levied the fi. fa, for the balance of the purchase money upon it. Mrs. Boyd set up an equitable claim on the ground, that with the knowledge of Chappell, her husband had used her money in paying the first $600 00 thereon, and had made her titles thereto; and she prayed that the land be decreed to be hers, or at all events, that when sold, the first $600 00 of the sum it sold for, wit hinterest thereon, be paid to her. On the trial of the case the court charged the jury to the effect that if they believed, from the evidence, that the money of the wife was applied by the husband to his debt for the land, with the knowledge of the vendor, that she had a good claim against the vendor for the money so applied, but that unless it was alleged and proved by her in setting up her equitable right to the land or the proceeds, or part of the proceeds thereof, that the vendor was insolvent or otherwise unable to respond to her for the money so received by him knowing it to be hers, she had no equitable claim to the land or lien upon it, or any of the proceeds thereof until the purchase money was all paid. The jury found the land subject; and the error complained of is the charge of the court, and its sequence, that the verdict is against the law of the case. On the question of the vendor's knowledge that the money was the wife's, there is conflict ; on the other, of the want of an allegation and proof of his insolvency, there is none. It is not alleged in the plea, nor was it proven or attempted to be proved, that the vendor was insolvent. So that the naked question here, is, was it necessary that Mrs. Boyd should allege and prove Chappell's insolvency, in order to charge this land in this case with her debt against him? In the case of Humphrey vs. Copeland, 54 Georgia Reports, 543, it was held that a creditor who received the wife's money for a debt due him from the husband, knowing it to be hers, acquires no title thereto. Whether the principle there laid down would apply to this case, it is not necessary to decide. Apparently it would. If so the wife may sue Chappell and recover her money back from him. But the question here is, can she charge this land with it unless all

Burrus & Williams vs. Kyle & Company.

the purchase money has been paid ? Had it all been paid and the title been made to her husband, a trust would have resulted to her, unquestionably, and he would have held the land as her trustee, and she could have asserted her right thereto, at law or in equity under our pleading; but here the title was in Chappell until he made a deed to Boyd under our statute for the purpose of selling the land and making the balance of the purchase money : Code, section 3586. That section of the Code provides that the proceeds of the sale shall be first appropriated to the payment of the balance of the purchase money. It is difficult to see what prior right anybody could acquire to land or money so situated and raised, if we regard the plain purport of the statute. If the wife showed that she could get her money in no other way, that the man who owed her was insolvent, that there was nothing out of which he could pay her but this land, and prayed that the money going to him, might be paid to her as the only way of securing her debt, then it strikes us there would be equity in her plea and its prayer. And so, in substance, the court charged, and thereupon the jury found, as they were obliged to do, under the facts, that there was no proof of Chappell's insolvency. We think the charge and the verdict in accordance with the law of the case.

Judgment affirmed.

BURRUS & WILLIAMS, plaintiffs in error, vs. KYLE & Com

PANY, defendants in error. 1. The discretion of the court in refusing to allow leading questions on cross

examination, will not be controlled unless abused; especially where the witness is one of the parties to the suit in whose interest the questions are

propounded. 2. Where cotton was delivered by a debtor to an agent of factors, and placed

upon their drays to be transported to their warehouse, their lien for advances, etc., at once attached, and was superior to the lien of an attachment levied whilst the cotton was in process of transportation to such warehouse.

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