Payne v. Blackshear

52 Ga. 637

• Court: Supreme Court of Georgia
• Decided: July 15, 1874
• Status: Published

Opinion

McCay, Judge.

1. We think the charge, of the court was right. It would be carrying the presumption that men know the law, and the mode by which land is sold by agents, very far, to say that the ease before us presents a conclusive case of fraud on the part of the purchaser. It is plain, from the evidence, that Routh was the agent of the true owner, and that he told the pur-. chaser that he had a power of attorney to sell. It is plain, also, that Doyal believed him, since he parted with his money on the faith of that statement. We think the matter was properly left to the jury as to the good faith of Doval; and so of the other purchasers afterwards. None of them seem to have known that the deed ought to be in the name of the true owner. One of them, it is true, had refused to buy from Routh, because he thought the power of attorney ought to go with the deed. Even he does not seem to have thought it did not exist, but that he wanted it in his own keeping. As we have said in several cases, it would make the law of prescription useless if, to make it available, men must get a good title or take care. Fraud, mala fieles, is a reply to it; and by the verdict the jury have found that did not exist in this case.

2. We do not think the amendment to the motion helps the case. Admitting that the court was bound to take judicial notice of the occupation of the locality by the Federal troops, etc., which we doubt, especially as the period of that occupation could not be fixed except by proof, we yet are clear that the mere failure of the judge to charge a point of law, especially one so latent in the case as this, was no error, unless the party complaining had made a request, or in some way called ■attention to it. As it is, it is a clear afterthought, and cannot be insisted on after the verdict.

Judgment reversed.