70 Ga. 57 | Ga. | 1883
Was the grant of an injunction in this case, staying proceedings upon a judgment obtained by. the plaintiffs in error, against the defendant in error and her husband, in an action of ejectment, in order to enable her to open the judgment and set up a defence thereto, which she alleges came to her
The record makes this case: Upon a petition filed by ■complainant’s trustee, he was authorized by an order of the chancellor to borrow a sum of money, not exceeding twelve hundred dollars, for the use of the trust estate, and in order to secure the loan, he was allowed to pledge or mortgage the lands belonging to the trust estate. This order was made upon a regular petition served upon all the parties in interest. The complainant consented to the arrangement, as did her minor children, by their guardian ad litem; the defendant in the bill made a loan and took the trustee’s notes and a conveyance under the act of 1871, Code, §1969, of a part of the lands belonging to said trust estate, and at the same time complainant’s conveyance to said lands, in accordance with the chancellor’s order, to secure the loan. 'The amount of money thus loaned was not paid when it fell due, and the defendants instituted their action of ejectment against the complainant and her husband for the recovery of the land thus conveyed to it. Although pér■sonally served, it does not appear that she answered the suit, or authorized any one to do so for her; neither did her trustee respond to the suit; her husband appeared at the trial term of the case, and by an agreement with him and his counsel, a verdict was rendered by consent, with a stay ■of execution.
It seems that the money was paid by the defendant to the ■complainant’s husband, who was constituted by the trustee his agent to receive and expend the same; that after the order for the loan secured by the lien was obtained, the entire negotiation was conducted by this agent, and that the trustee received no .part of the money, and concerned himself not at all about the particulars of the transaction, or the disposition of the amount advanced.
The bill charges, among other things, that complainant’s
Upon the presentation of this bill, the judge issued a rule calling upon the defendants, on a day named therein, to show cause why the injunction prayed for should not be granted, and ordering a stay of proceedings until the hearing. At the hearing the complainant produced and read the affidavit of Williams Rutherford, her husband, in which he deposed, among other things, that he made the arrangement himself with the Capital Bank of Macon by which they advanced certain money to him on the trust property of his wife and children; that after the terms had been ■ agreed upon, he went to A. W. Gibson (the trustee) and complainant and induced them to sign the notes and deeds; all the money was paid to him. Before the bank would agree to advance any money, it required that the sum of two hundred and seventy-eight dollars, besides several years’ interest, which he owed it individually, before he went into bankruptcy, should be embraced in the notes and deeds, given by his wife and her trustee to secure the payment. of the same; that he received from the bank only six hundred dollars, and the balance of the amount included in the deeds and notes was the principal and interest of the. old claim that the bank held against him prior to Ms going into bankruptcy, and which the said bank demanded, should be included in said notes and deeds before they would advance the six hundred dollars; that all of said six hundred dollars has been paid to the bank, except fifteen dollars; that Ms said wife had no hand or part in, or knowledge of, the arrangement made by him with the attorneys of the bank by which a verdict and judgment in the ejectment suit was taken, nor did she know of the same until recently; neither did she, so far as he knows or believes, have any knowledge of the fact that any individual debt of his was included in said notes and deeds until very recently.
Equity will interfere to set aside a judgment of a court, having jurisdiction; only where the party had a good defence of which he was entirely ignorant, or where he. was prevented from making it by fraud or accident, or the» act of the adverse party, unmixed with fraud or negligence-on his part. Code, §3129.
Fraud will authorize a court of equity to annul conveyances, however solemnly executed, and to relieve against awards, judgment and decrees obtained by imposition.. Code, §3178.
The judgment of a court of competent jurisdiction may be set aside by a decree in chancery for fraud, accident or mistake, or the acts of the adverse party unmixed with the-negligence or fault of the complainant. Code, §3595, and the numerous cases cited under each of these sections from the reports of this court, in the Code of 1882.
The denial that Williams Rutherford was the agent of' the Capital Bank in this transaction amounts to little, when it is evident from the charge in the bill that there is a misuse of the word; it was evidently used in the sense of' his being in complicity with the bank. Suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circum
Judgment affirmed.