Whitaker v. Tompkins

19 Ga. 575

• Court: Supreme Court of Georgia
• Decided: February 15, 1856
• Docket: No. 110
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Giles S. Tompkins contracted with P. EL Whitaker, that if he would pay one half of the purchase money for tho land, and become his security, that he should be entitled to one half o'f the lot. Whitaker became security and paid more than one half of the price at which the property was bid off, and had the credit entered on the back of the note as paid by him as security, which ho purported to be upon the Tace óf the paper.

Shall this deprive him of the benefit of his written agreement with Tompkins, about which there is no controversy? Was'it not fight to' have'the payment thus endorsed ? It was ■ in strict conformity with the understanding between the deceased and himself and the facts of the. case; and moreover, was necessary to entitle him to the rights of a security quoad the excess of payment over his half.

This contract was reduced to writing — was never repudiated 'by Mr. Tompkins in his lifetime, and one which Mr. Whitaker could not avoid since his death, if he would. Suppose he had undertaken to collect the money thus paid from the estate of Tompkins; would he not have been estopped by the testimony in this record, and a tender, by the administrator, of a conveyance, to one half the land? Of course the agreement is reciprocal; and if Whitaker wrould be bound by it, the estate of Tompkins must be.

The alternative charge, therefore, was wrong; and the verdict of the Jury was not only contrary to the strong and decided weight of the evidence, but wholly without any proof to support it.