Tompkins v. Corry , 14 Ga. 118 ( 1853 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] We are clear that a new trial should have been granted in this case. There is not a scintilla of testimony to warrant the verdict. It could only have been rendered by computing interest on the items of mutual indebtedness between the parties : that is, on the $11,000 against Tompkins, from the time he went into possession of the land, in October or November, 1840; and then on each of the notes of Garmany, as they severally fell due, up to the time of rendering the decree, and setting off one against the other, and striking a balance. And this, the jury could not do, in the face of the testimony of Josiah Jacobs, who swears positively, that no interest was to be reckoned on either side ; and his evidence is uncontradicted.

Without calculating interest, there should have been a decree of $200 for the complainant. Garmany was still owing Tompkins the three first installments for the land, of $3,000 each; making $9,000; and $2,200 on the last or large note, as the parties called it, viz: $4,000, with a credit of $1,800 ; making the whole amount of Garmany’s indebtedness to Tompkins $11,200. From this sum, deduct the $11,000, owing by Tompkins to Garmany, on the re-purchase of the land, and it leaves a balance in favor of Tompkins, of $200. Instead of which. the jury, not only without proof, but against the oath of the only witness, who deposed as to the agreement, returned a verdict in favor of the defendant, for $1,348 61.

[2.] Besides, the verdict is contrary to Law. It does not find the issues made by the pleadings, and submitted to the jury for their consideration. There is no finding as to the prayer for a perpetual injunction, against the several actions of ejectment, brought by the administrator of Garmany, against Tompkins and his tenants; nor as to the plea of payment, filed against the proceeding for the foreclosure of the mortgage. And yet, upon a settlement of the account between the parties, Tompkins was entitled to this relief.

We must, therefore, send this case back. On the re-hearing, it will be competent for the defendant to offer proof of payments, by his intestate, provided any were made. If this should be done, and the mortgage debt be found to, bo unpaid, Tompkins must discharge the amount, before he will be entitled to a decree, for the re-conveyance of the land.

We do not intend to pre-judge the rights of creditors, if there be any; and we infer from the record, that there are outstanding debts still due and unpaid, against the estate of William J. Garmany. For Pleasant H. Whitaker testifies that he held executions against the deceased, and had tried since his death to make the money on them, but had been unable to find property, out of which they could be satisfied. The claims of the creditors, could only be brought under judicial cognizance by the answer of Mr. Corry, the legal representative of Garmany; or by Bill of Interpleader, filed at their own instance. In remanding this cause, we cannot give directions, as to the creditors, because they are not before us, as parties to this proceeding. The Court of Chancery, will be opon to them at any time, up to the final decree, which may be rendered in the premises.

Judgment reversed.