Opinion
17981.
SUBMITTED SEPTEMBER 9, 1952.
DECIDED OCTOBER 15, 1952.
Cancellation. Before Judge Mundy. Haralson Superior Court. June 30, 1952.
Claude V. Driver, for plaintiff in error.
Murphy Murphy and William J. Wiggins, contra.
Felix K. Deering brought an equitable petition against J. N. Miller, seeking to restrain the defendant from selling two tracts of real estate under powers of sale contained in two security deeds, which the plaintiff had executed to the defendant for the purpose of securing a debt, and praying the cancellation of these deeds because of the debt having been fully paid. The defendant in his answer and cross-petition denied the allegation that the debt which the deeds had been given to secure had been paid, and alleged that the plaintiff was indebted to him in certain amounts as principal, interest, taxes and expenses, and prayed for a general judgment against the plaintiff and for a special lien against the real estate. On the trial of the issues, a jury returned a verdict in favor of the plaintiff, and a decree was entered accordingly. The defendant's motion for a new trial, on the general grounds and one special ground, was overruled, and the case is here on exceptions to that order. Held:
1. Where the trial court charged the jury that before the plaintiff could recover the burden was upon him to prove by a preponderance of the evidence the truth of his contentions, and the jury returned a verdict in his favor which was authorized by the evidence, a further charge by the court that, in the event the jury found that the plaintiff was not entitled to recover, "then you would determine whether or not the defendant is entitled to a judgment and that same burden would be on the defendant to establish his debt against the plaintiff," even if erroneous as contended, was harmless. The finding by the jury that the plaintiff was entitled to a cancellation of the security deeds, was necessarily a finding that the debt on which the defendant sought a judgment in his cross-petition had been paid. It follows that the sole special ground of the motion for new trial, complaining of the charge on the burden of proof, is without merit. Moore v. Brewer Co., 94 Ga. 260 (1) ( 21 S.E. 460); Brandon v. Pritchett, 133 Ga. 480 ( 66 S.E. 247).
2. The evidence fully supported the verdict.
3. The motion for a new trial was properly overruled.
Judgment affirmed. All the Justices concur.