Burkhalter v. Durden

50 S.E. 144, 122 Ga. 427, 1905 Ga. LEXIS 232

• Court: Supreme Court of Georgia
• Decided: March 8, 1905
• Status: Published

Opinion

Cobb, J.

The claimant’s deed was on its face an absolute conveyance; but treating it as a deed to secure a debt,- Burkhalter had no right to enforce his execution against the land until he paid or tendered to Durden the amount of his debt. Shumate v. McLendon, 120 Ga. 397. A legal tender of the amount due to Durden would have taken the place of actual payment, but the evidence was not sufficient to show a legal tender. The proposition made by Burkhalter was too indefinite to amount to a tender. It stated no amount, and it was conditional upon Durden’s accounting for the rents, the amount of which was not stated. The evidence the rejection of which is assigned as error in the motion for a new trial could not, if admitted, have changed the result. Whether the case be viewed in the light of the evidence admitted, or of that admitted and rejected, a verdict for the claimant was demanded, and the court did not err in directing the jury so to find, or in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.