Collier v. Harkness

26 Ga. 362 | Ga. | 1858

By the Court.

Lumpkin J.

delivering the opinion.

Harkness obtained judgment against Collier on a note for two thousand dollars. An appeal was entered, and pending the appeal, a bill has been filed, praying an injunction against the comnqon law action. Collier amended the bill, making Mrs. Harkness a party. Harkness answered the bill, and moved to dissolve the injunction; which motion was granted, and to this order Collier excepts. Amongst other things, Collier-complained that the injunction should not have been dissolved until Mrs. Harkness had answered the bill.

To obviate all difficulty on this account, as well as to relieve the case from the supposed equities in favor of attaching upon the note in the hands of Mrs. Harkness and of her husband, Harkness, we propose to treat the case as though the suit had been brought by Cargile, the payee, against Collier, and the bill had been filed by Collier against Cargile. This simplifies the case very much, and is conceding all that Collier can ask. What, then, would be the equities between the original parties ?

The bill, in substance, charges that Cargile misrepresented the profits of the mill, which was the main inducement to make the purchase; and that the complainant has been disappointed in not realizing from it as he had expected to do, the means to meet the payment of the purchase money. We are satisfied that the allegations in the bill do not amount to such a fraud in the sale of real estate as would entitle the purchaser to relief. That the mills are not as profitable under the management of Mr. Collier as he anticipated, does not necessarily show that there was deceit practiced in the sale of this propeAy. Mr. Collier’s business is taverning, not milling. And it is quite likely that he is the best customer of his own mill, without crediting it with all that he consumes. Our people are somewhat given to bragging, It is a national characteristic; and no wonder — for they have much to be proud of. it will not do to scrutinize their idle boastings too closely. No one is misled by them, for no one, unless he be decidedly verdant, believes all or even one-half that is said as to the value or productiveness of property. Mr. Collier does not aver verjr strongly that he was the dupe of his overweening confidence in Cargile. In the sale of property, especially of real estate, which may be seen of all men^ the law imposes a duty upon the vendee as well as the vendor. And it refuses assistance to those who have it abundantly in their hands to take cars of themselves. Everyone who is, sui juris, capable of contracting and being contracted with, is his own guardian. And caveat emptor is the well settled doctrine of the old common law. Chancellor Kent may well regret that it bad not been adhered to. 2 Kent’s Com., 485. It would have saved the Courts and the county immense trouble.

But this is not the gravamen of this bill. The main ground upon which relief is sought is on account of the incumbrance or cloud hanging over the title of this property. In response to the allegations in the bill, the answer states fully the facts in this respect. And what are they? That between thirty and seventy acres only of the land were bought by Cargile of the late General Tarver, and that the mills are not on this portion. And even the bill states that since Collier bought, he has heard’that the estate of General Tarver threatens to enforce the vendor’s lien for the unpaid purchase money. And it is from this quarter the bill charges that danger is apprehended.

If Mr. Collier has only heard this since he bought, he is in no peril. Being bona Jide purchaser, without notice, he is protected, of course, against this vendor’s lien, even if it existed, upon any portion of the land as against Cargile.

Suppose it were otherwise, the injunction should only be continued in any view of it for the protection of Collier to the value of the small strip of the land purchased of General Tarver, and the balance of his note he ought to pay. At any rate, the plaintiff should not be restrained from collecting it. But there is no sufficient reason for retaining the injunction at all.

Consequently, we affirm the order of the Circuit Court.