Durand v. Craig

Supreme Court of Georgia

Durand v. Craig

43 Ga. 444

DecidedJuly 15, 1871

StatusPublished

This text of 43 Ga. 444 (Durand v. Craig) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durand v. Craig, 43 Ga. 444 (Ga. 1871).

Pincite

Opinion

Warner, Judge.

This was an action of ejectment brought by the plaintiff on the separate demise of Samual A. Durand, against the defendants, to recover the possession of the north half of lot of land No. 110, in the fourteenth district of DeKalb county. On the trial of the case it was admitted that William Allen was the owner of, and had the title to, the land in dispute, both parties claiming title through him. The plaintiff read in evidence a power of attorney, executed by Allen to McLean, on the 24th April, 1862, authorizing McLean to sell [448]*448the land. Also, a deed made by McLean, as the attorney, in part, of Allen, on the 23d day of January, 1863, to Du-rand. This deed had but one witness to it. It was admitted that Allen died in the State of Kentucky, on the 6th day of September, 1862, more than four months prior to the making of the deed by McLean, under the power of attorney executed by Allen. Allen was in the Confederate army at the time of his death. The lessor of the plaintiff claims that he has a perfect title to the land, irrespective of the deed, on the ground that he purchased the land of McLean, paid for it, and took possession thereof before the death of Allen. The evidence upon this point in the case is that of Durand, the plaintiff’s lessor, and is not very full and satisfactory. The newly discovered evidence is in relation to the payment for the land, and is not cumulative merely, as there was no evidence offered by the defendants in relation to the non-payment for the land by the plaintiff. If the defendants, on the trial, had offered evidence as to the nonpayment of the purchase-money for the land, then the newly discovered evidence in relation to that point in the case would have been merely cumulative evidence. The newly discovered evidence relative to the non-payment of the purchase-money for the land by the plaintiff, might have produced a different result in the finding of the jury, as that was a material question in the case. In view of the facts disclosed by the record, we cannot say that there was any abuse of the discretion vested by the law in the Court below, in granting a new trial in this case.

Let the Judgment of the Court below be affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Warner, Judge.

This was an action of ejectment brought by the plaintiff on the separate demise of Samual A. Durand, against the defendants, to recover the possession of the north half of lot of land No. 110, in the fourteenth district of DeKalb county. On the trial of the case it was admitted that William Allen was the owner of, and had the title to, the land in dispute, both parties claiming title through him. The plaintiff read in evidence a power of attorney, executed by Allen to McLean, on the 24th April, 1862, authorizing McLean to sell [448]*448the land. Also, a deed made by McLean, as the attorney, in part, of Allen, on the 23d day of January, 1863, to Du-rand. This deed had but one witness to it. It was admitted that Allen died in the State of Kentucky, on the 6th day of September, 1862, more than four months prior to the making of the deed by McLean, under the power of attorney executed by Allen. Allen was in the Confederate army at the time of his death. The lessor of the plaintiff claims that he has a perfect title to the land, irrespective of the deed, on the ground that he purchased the land of McLean, paid for it, and took possession thereof before the death of Allen. The evidence upon this point in the case is that of Durand, the plaintiff’s lessor, and is not very full and satisfactory. The newly discovered evidence is in relation to the payment for the land, and is not cumulative merely, as there was no evidence offered by the defendants in relation to the non-payment for the land by the plaintiff. If the defendants, on the trial, had offered evidence as to the nonpayment of the purchase-money for the land, then the newly discovered evidence in relation to that point in the case would have been merely cumulative evidence. The newly discovered evidence relative to the non-payment of the purchase-money for the land by the plaintiff, might have produced a different result in the finding of the jury, as that was a material question in the case. In view of the facts disclosed by the record, we cannot say that there was any abuse of the discretion vested by the law in the Court below, in granting a new trial in this case.

Let the Judgment of the Court below be affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

43 Ga. 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durand-v-craig-ga-1871.