Hall v. English

47 Ga. 511 | Ga. | 1873

Warner, Chief Justice.

This was a bill filed by the complainant for a new trial, and praying for an injunction. The injunction was granted, the defendant answered the bill, and made a motion to dissolve it. The Court overruled the motion to dissolve the injunction, but modified it so as to meet the exigencies of the case in the exercise of the discretion vested in it by law. To this ruling of the.Court the defendant excepted. The complainant’s absence from the Court, for providential cause, at the trial, is conceded, but it is said there is no merit in his application for a new trial, and that he has an adequate remedy at law. It appears, from the record, that Hall obtained a mortgage from Wolfe on a lot in the town of Warrenton, to secure the payment of a debt due by Wolfe to Hall, which had been duly recorded, foreclosed, and execution levied on the lot. as Wolfe’s property, which was claimed by English, the complainant, as his property. Hall filed a bill to set aside English’s deed, under which he claimed title to the lot, and which was the foundation of the claim interposed by him to prevent the sale of the lot as Wolfe’s property. At the last October term of Warren Superior Court the equity cause was called, and a decree rendered, setting aside the deed of English, and directing the same to be canceled. The complainant alleges that he was prevented from attending the Court, by providential cause, and thereby prevented from making his defense as he otherwise would have done; that Wolfe, Hall’s mortgager, had no title to the lot, but simply a bond for titles from Roberts, from whom he purchased, conditioned to make title when the purchase money was paid; that Wolfe never paid any part of the purchase money for the lot; that after the purchase money became due, English, the complainant, purchased the lot from Roberts, who had the legal title thereto, which was conveyed by the deed of Roberts to him, and this was the deed which the decree of the Court canceled. It appears, from the affidavit of Hillman, who made the deed to the lot under a power of attorney from Roberts, to English, the complainant, that he, English, produced Roberts’ bond to Wolfe without any transfer of the same by Wolfe to him, paid Wolfe’s note, and he made a deed for the lot to English; that when Wolfe purchased the lot from Roberts, it was a vacant lot; Wolfe built a house on it with lumber purchased from Hall, the payment for which the mortgage was given by Wolfe to Hall to secure; that English, at the time he took the deed knew of Hall’s mortgage to secure the' payment for the lumber of which the house was built, said that he thought by purchasing the house and lot he could save something, (as Wolfe was indebted to him) by paying mortgage claim, and original cost for vacant lot. What may be the equities of the respective parties to this property must necessarily depend upon the facts which may be proved on the trial of the cause, and it is right and proper that the same should be definitely settled by the decree of the Court before the property is sold, so that the property may bring its full value, and that the purchaser may know what he purchases at the sale. A Court of equity having obtained jurisdiction of the cause, will retain it so as to make a final decree as to the respective rights and equities of the parties, and not turn them round to litigate, in a Court of law, where the remedy, in our judgment, would not be as adequate and complete as in the Court where they now are, but conceding that the complainant’s remedy in a Court of law and a Court of equity is concurrent, the Court first taking jurisdiction of the case will retain it: Code, section 3041. In view of the facts of this case as disclosed in ¿lie record there was no error in the judgment of the Court in granting the injunction, which will authorize this Court to interfere and control that judgment by reversing it.

Let the judgment of the Court below be affirmed.