Clifton v. Livor, 24 Ga. 91

Clifton v. Livor

24 Ga. 91 | Ga. | 1858

Lumpkin, J.

By the Court. delivering the opinion

This was an application by bill for relief and injunction.

It charges, that on the 20th day of January, 1851, one John Livor, of the State of New York, applied to the complainant, and represented to him that he could, by a neto process, teach complainant in the space ef sixty days, a thorough knowledge of surveying, etymology, syntax of English grammar, single and double rule of three, analysis, interest, discount, loss and gain, equation of time, partnerships and square-root; also the art of book-keeping, and the simple equations of algebra!!! Furthermore, the complainant is “ empowered to follow” the said Livor “ up,” for the purpose of being improved in the above branches, after the expiration of the time mentioned in the contract, free of charge. The said Livor also agreed that all notes held by him against complainant, should be null and void, if he did not perform his part of the undertaking.

The bill charges, that Livor taught twenty days only, or one-third of the stipulated term, and left the country for parte unknown; and that he wholly failed to teach complainant the branches enumerated in his written articles. There is an acknowledgment upon the agreement, of the payment of twenty days, viz: one month’s tuition, commencing from the 20th January, 1851.

The bill further charges, that the complainant being an uneducated man, and relying upon the promises of Livor, made and delivered to him twenty promissory notes, each for thirty dollars, amounting in the whole to the sum of $600 ; and for securing the payment thereof, the complainant executed to Livor, a mortgage on two tracts of land, containing about 680 acres, lying in Emmanuel county.

The bill also states, that at the October Term, 1855, of the Superior Court ©f said county, Livor, by his attorney, A. H. H. Dawson, Esquire, obtained a rule nisi to foreclose the *95mortgage charged to have been falsely and fraudulently procured by Livor from the complainant, which rule nisi was returnable to the next April Term, 1856. That owing to providential causes that Term of the Court failed, and that at the September Term, thereafter, complainant was too sick to attend Court until late in the evening of the second day of the Term; and that when complainant arrived, therule had been made absolute, although complainant alleges, that he was informed by his counsel that he, in his behalf, had urged, upon the Court to allow complainant until the last day of the Term, to file his affidavit in terms of the law, which the Court refused.

The bill further states, that but for the sickness of the complainant, which prevented him from attending Court, he could have made it appear that the mortgage so foreclosed, was not only fraudulently procured, bpt that Livor, the mortgagee, utterly failed to comply with his part of the agreement, and'with the conditions upon which he obtained said mortgage.

It further appears from the bill, that upon the rule absolute, afi fa. was issued and levied on the mortgaged premises, which were sold and bought in by one John Overstreet, the then Sheriff of Emmanuel county, Mr. Dawson, the attorney of Livor, not being present bidding by himself or any agent; neither did he pay any money for the land. That no title has been conveyed by Overstreet; that Clifton, the complainant, is still in possession, but that he is threatened with eviction by Mr. Dawson, the attorney íor Livor.

Upon these allegations in the bill, the Court granted the injunction, so far only as relates to the sale already made by the Sheriff. And the only question now is, whether, according to the case made, the complainant is not entitled to further relief? In other words, is he not entitled to be let in to the defence of the contract itself; and to avoid it if he can, for fraud, failure of consideration, or any other cause ?

We need not characterize this contract; it characterizes *96itself. It is stamped upon its face with the grossest imposition on the one part, and the blindest credulity on the other. It proves, to be sure, that the "schoolmaster is abroad,” but such a schoolmaster! It shows another fact, that the people of Georgia are longing to eat of the fruit of the Tree of Knowledge. The State owes it to herselfto supply them with competent teachers.

We need not remark, that no appeal could have been entered from the rule absolute awarded by the Court, in this case It has been gravely doubted whether the mortgagor, upon a rule to foreclose, is entitled to make any other defence than that specified in the statute, and that is, that he is entitled to payments which have not been credited upon the mortgage, or to set-off, which in equity ought to be allowed. True, this Court has put a more liberal construction upon the judiciary Act of 1799, prescribing the mode of forclosing mortgages on real estate. Still, it makes no express provision for forming an issue to be tried by a jury. In short, it does not directly provide a common law remedy. We are inclined to think, therefore, that the mortgagor is entitled to go into equity, to make his defence available, especially if, as in this case, he is entitled to special relief, namely, to have his notes and mortgage delivered up to be cancelled, that they may no more encumber his property. If this be so, the complainant cannot be said to have had his day in Court. And he has lost nothing by suffering judgment at law to go against him.

[1.] But waiving all these views, we meet the question broadly and inquire, does not the complainant render a sufficient excuse for failing to file his defence at law ? He is not responsible for the miscarriage of the Court at the Spring Term, 1856; and he was prevented by sickness from arriving in time at the Fall Term thereafter, to make his defence; a stubborn sworn fact, whether brought to the knowledge of the Court at the time of the foreclosure or not. He was not bound to make it before. And even if he were, it was his privilége, under the Act of 1853, to amend his defence, at the *97September Term, 1856, or at any other stage of the cause. And it is againstjustsuch accidents that a Court of Chancery will grant relief. More especially will it interpose to give to the deluded victim of this transparent imposture an opportunity to defeat a demand which, if one statement only in the bill he true, is absolutely null and void. For Livor, by going off and failing to teach the stipulated term, forfeited his contract He has already been paid for the month he taught, and this, under the agreement, is that much more than he was entitled to receive.

In every view of the case, therefore, we hold that the Judge erred in not granting a general instead oí a partial injunction.

Judgment reversed.