Coffee v. Newsom
8 Ga. 444
Ga.
1850
Check Treatment

*448 By the Court.

Lumpkin, J.

delivering the opinion.

An injunction was obtained in this ease, upon the fraud charged against the testator of the defendant. Is the answer of the executor, who admits his ignorance as to the principal allegations in the bill, but expresses his belief that they are untrue, sufficient to dissolve the injunction ?

Believing that in the decisions of Courts, as well as the arguments of counsel, the chief of all perfections is, to be plain, pertinent and brief, I shall endeavor, in the present instance, to conform my practice to my principles.

[1.] We understand the general rule to be, that a denial in the answer from information and belief, is not sufficient to dissolve the injunction. Apthorpe vs. Comstock, 1 Hopkins, 148. Ward vs. Van Bokkellen, 1 Paige, 100. Poor vs. Carleton, 3 Sumner, 78.

[2.] And'that where the equity of an injunction bill is not charged to be within the knowledge of the defendant, as is the case before us, and the defendant merely denies all knowledge and belief of the facts alleged therein, the injunction will not be dissolved on the hill and answer alone. Rodgers vs. Rodgers, 1 Paige, 426. Quackenbush vs. Van Rosser, 1 Saxton’s N. J. R. 476. Fulton Bank vs. New York & Sharon Canal Co. 1 Paige, 311.

[3.] And it is always a good answer to an application to dissolve an injunction upon bill and answer, that the equity of the bill, upon which the injunction rests, is not denied by the defendant, whether from ignorance of the facts or any other cause. Watkinson vs. Gillespy, 5 Paige, 112.

Rodgers vs. Rodgers, supra, was a bill filed against the personal representatives, to restrain proceedings at law, on notes given to the testator. The equity of the bill on which the injunction was granted, was not charged to be in the knowledge of the defendants, and they put in an answer denying all knowledge or belief as to the principal facts on which it rested; and the Chancellor held, that in such a case, the injunction could not be dissolved on the hill and answer alone. This case is, in every feature, the one at bar.

[4.] Roberts vs. Anderson, (2 Johns. Ch. R. 202,) is also similar to it. There the bill charged fraud in the title to the premises *449•in controversy, and the injunction was issued to restrain the defendant from proceeding at law. All the denial contained in the answer was, that the defendants were not privy to any fraud, and that they believed the conveyance was good. But Chancellor Kent said, “ This is leaving the question of fraud as unsettled .as when the answer came in. It is true, the defendants may have given all the denial that is in their power, but the fraud may exist notwithstanding, and consistently with their ignorance, or the sincerity of their belief. It appears to me, then, that until the cause is brought to a hearing and decided on the merits, the injunction ought not to be dissolved, and that the case does not fall within the reason of the general rule, that an injunction is to be dissolved when an answer comes in and denies all the equity of the bill.”

What, I ask, is the sum of the defendant’s answer in the case before us 1 It is, that he disbelieves the material allegations in the bill, but that he Imows not whether they are true or false ; that they relate not to his own acts, but to those of his testator ; that he was no party to the material transactions, but, on the contrary, a stranger to them. This surely can constitute no good foundation for a motion to dissolve the injunction. The bill and answer may both be true, and still the controversy be not in any wise affected. The contract with the testator may have been grossly fraudulent, and yet the present defendant, in good faith, not only aver his ignorance of the fact, but his total disbelief of it, from his entire confidence in the integrity of his testator. •

[5.] In some particular cases, the Court will continue an injunction, though the defendant has truly answered the equity set up. 2 Ves. 19. Wyatt’s P. R. 236. The injunction, then, ought not surely to be dissolved under the circumstances of this case,