Denham v. Kirkpatrick

1. An action for damages transferred from the county court to the superior court because the plaintiff’s title to land was involved, goes in its entirety to the superior court, and will be fully and finally disposed of therein. 8. A deed tainted with usury is void as title, and if good as an equitable mortgage construed with bond to recovery, it is good only to secure the principal debt 3. Where the holder of such a deed, on the sale of the land by the sheriff, states he holds an equitable mortgage for fifteen hundred dollars and that the purchaser will buy subject to that incumbrance, and becomes a bidder himself, with full knowledge that five hundred dollars of the fifteen hundred is for interest taken by himself for one year’s loan of one thousand dollars, and the land is knocked off to him, and another bidder who contested with him would have given five hundred dollars more for the land, had the mortgage been represented as to secure but one thousand dollars: Held, that the equitable mortgagor is entitled in an action plainly pid distinctly setting out the above stated facts and proving them on the trial, to recover from, the buyer the difference between the price at which the land was bid off and what it would have brought but for the misrepresentation, with interest up to the trial. 4. It is always right for the court, before their discharge, to have the verdict of the jury put in proper form, the substance thereof not being changed.

Courts. Jurisdiction. Title. Usury. Mortgage. Damages. Practice in the Superior Court. Before Judge Snead. Richmond Superior Court. April Term, 1879. Kirkpatrick brought suit in the county court of Richmond county, against Denham. The declaration alleged, in brief, the following facts : Plaintiff was the owner of a lot in the city of Augusta, which was levied on and brought to sale in June, 1876, under a fi.fa. against him. Just as the lot was exposed for sale by the sheriff in the presence of a large number of bidders, defendant caused his attorney to announce publicly that he held an equitable mortgage for $1,500.00 on the place, and that the purchaser would take subject to this lien, — the attorney exhibiting at the same time a paper as such mortgage. This statement was false, fraudulent and malicious, and, by frightening bidders, enabled defendant to buy in the land at a price much below its value, thereby damaging plaintiff. This declaration was filed in the county court, September 14, 1878. Defendant pleaded the general issue, the statute of limitations, and estoppel from claiming title by reason of a deed conveying the property out of defendant before the sheriff’s sale. On account of the collateral issue in regard to the title, the case was transferred to Richmond superior court. (Acts 1874, p. 79). When the case was called in that court, counsel for defendant insisted that nothing was for trial there except the collateral issue of title. The court overruled this position and ordered the case to proceed. The evidence showed substantially the following facts: In December, L875, plaintiff, who then owned the place, borrowed $1,000.00 from defendant. For this he gave his note for $1,500.00 due at twelve months, and to secure this, made a deed for the lot to defendant, and took a bond for re-conveyance upon payment of the note. At the sheriff’s sale defendant’s attorney made an announcement, or had it made. He testified that it was stated that defendant had a deed to the property the consideration of which was $1,500.00,and would claim under it as an equitable mortgage, and that purchasers would buy subject to whatever incumbrance defendant might have under the deed. Witnesses for plaintiff state the announcement as it was set out in the declaration. Defendant himself became a bidder. One Wilson was also a bidder. The latter was willing to pay $3,700.00 for a clear title; considering that the incumbrance would be $1,500.00, he bid $2,200.00, and, defendant bidding $2,210.00, he became the purchaser. Had it been announced that the incumbrance was $1,000.00 Wilson would have bid $2,700.00. The jury found for plaintiff $588.95. Defendant moved for a new trial on the following grounds, among others : 1st. Because the court erred in holding that the whole case was before the superior court for trial. 2d. Because the court refused to charge, as requested by defendant’s counsel, “that to support an action for slander of title, it must be shown that the statement made by defendant to the injury of the title, was both false and malicious;” but instead of charging as so requested, qualified the same by saying “ that if the statement was false, that was, alone, sufficient to authorize the plaintiff to recover actual damages, and if malicious, then the plaintiff could also recover exemplary damages.” 3d. Because the court refused to charge, as requested by defendant’s counsel, “that if the case is not an action for slander of title, then'it is an action for words, and if not brought within one year from the time the action accrued, then it is barred by the statute of limitations.” 4th. Because the court refused to charge the jury, as requested by defendant’s counsel, “that the plea of usury is a personal plea, and until Kirkpatrick, the plaintiff in this case, availed himself of this plea, Denham, the defendant, could in good faith and without malice or falsehood, claim that there was due him in the transaction fifteen hundred dollars.” 5th. Because the court erred in charging the jury “that if they found from the evidence that $500.00 of the sum named as the consideration in the deed from Kiikpatrick to Denham was usury, then said deed was void as title, and the statement, if made by defendant or his counsel at the sale, that he held an equitable mortgage upon the property for fifteen hundred dollars, was false, and the plaintiff was therefore entitled to recover whatever actual damages he may have sustained ; and further, if the jury found that the statement was also malicious, 'then plaintiff is entitled besides to exemplary damages.” 6th. Because the verdict was contrary to law and evidence. 7th. Because the court erred in the following : When, the jury returned to the court-room with their verdict it was as follows : “ We, the jury, find for plaintiff the sum of four hundred and ninety dollars, with interest from date of the sale of the property.” Counsel for plaintiff arose, and stating that he desired no interest to be expressed in the verdict, moved the court to instruct the jury, if they meant to give the interest as damages to plaintiff, to retire to their room and. so amend the verdict as to include all the damages in one general verdict of damages. Whereupon the court so instructed the jury, and they retired to their room and immediately afterwards returned with the following addition to their finding: “ The amount of damages with interest is five hundred and eighty-eight dollars and ninety-five cents.” Counsel for plaintiff still objecting to the form of the verdict, the court ■directed the foreman, if such wa:s the intention of the jury, to include or embody the whole amount in one general verdict reading in damages. Whereupon the foreman, without the jury retiring, wrote the following verdict over his name as foreman: “We, the jury, find for plaintiff the sum of five hundred and eighty-eight dollars and ninety - five cents damages,” — which was read aloud by the clerk, all of the jury being in their seats and all of them tacitly assenting to the verdict so amended, but the court not inquiring particularly of the balance of the jury if such was their verdict; all of which was objected to by defendant’s ■counsel. The motion was overruled, and defendant excepted.