150 Ga. 521 | Ga. | 1920
In 1901 T. H. Remsen executed a warranty deed conveying to John C. Hollenshead a described tract of land. The land was encumbered by a senior mortgage and certain common-law fi. fas. The mortgage was foreclosed in 1902. In January, 1903, the land was sold by the sheriff under the mortgage fi. fa.; the common-law fi. fas. also being in the hands of the officer. In order to protect his title Hollenshead bid in the property, paid the amount of his bid, and received a deed from the sheriff. In 1904 Remsen died intestate, while living in Columbia County, leaving a widow and minor child by her and one minor child and four adult children by a former marriage. There was no administration on his estate. In March, 1904, on application of the widow, the court of ordinary of Lincoln County (in which county the widow ’then resided) approved and entered of record a report of appraisers
The plaintiff comes into a court of equity, seeking equitable relief. He has delayed bringing his suit for' 15 years, under peculiar circumstances, and without giving any explanation for the delay. The breach of the bond occurred while the obligor was in life; and the damage could have been paid by him, or he might have had some other ground upon which to defeat the demand, which he can not now explain. If there was no defense to the demand, the plaintiff could have subjected the property before it fell into the hands of the distributees (the fact now relied on to involve them in personal liability for the debt). The debt enhanced by accumulation of interest, which could have been prevented by payment had the heirs known of the demand. The property enhanced greatly in value, a fact which, under the law as contended by plaintiff, would have enlarged the defendants’ personal liability. Under the circumstances of the case, as disclosed by the allegations of the petition and the uncontradicted evidence, a case is presented in which, as a matter of law, equity would interpose a bar to the plaintiff’s demand, on account of his long delay, and the change of the status during that time. Civil Code, §§ 4369, 4536; Southern Ry. Co. v. Lancaster, 149 Ga. 435, 458 (100 S. E. 380); 10 R. C. L. 400, § 147. As the plaintiff ought not to have recovered a verdict for any amount, the judgment refusing his motion for new trial will not be disturbed.
Judgment affirmed.