9 Ga. 497 | Ga. | 1851
By the Court.
delivering the opinion.
This was a bill filed by Aaron Palmer to restrain Lewis House and Matthew C. Halen, his lessee, from digging gold on lot No. 501, in the 13th district and 1st section of what was originally Cherokee, now Lumpkin County. Lewis House was the drawer of the land, and he conveyed the same to one John-McClure, in 1833, reserving to himself the right of digging gold on the
In 1837, McClure sold the land to Palmer, the complainant, subject to the same reservation. The bill charges, that at the time this last conveyance was made, it was the understanding of the complainant, that House had waived all his right under his deed to McClure, “ by having failed to test the lot within eighteen months, according to the condition in his deed.” It further charges that, “more than four years having elapsed from the date of House’s sale to McClure, and House having made no pretension to work on the lot, or given notice to McClure of his purpose to do so,” that he had good reason to believe that House had forever relinquished all his right in said lot, and that he bought with this belief. It further charges, “ that it was not true that a test had been made in compliance with the requisition in the deed to McClure, or that notice had been given to the complainant that he found the mine profitable, and intended to work it.”
The complainant states, “ that having purchased under these circumstances, afterwards, to-wit: in 1840, he commenced operating on the lot for gold, believing and claiming that the gold as well as the land, was rightfully his property; and that from that year down to a recent period, and for more than seven years, he has at frequent intervals, and as constantly as he could spare his hands from other employment, worked for gold on said lot; during most or all of which time, he has had on said lot, his mining tools, utensils, troughs, &c. or some of them; claiming and holding the same independent of the right of all other persons, while House has not at any time during this period, made any attempt to operate on said lot.”
To this bill, defendants filed a general demurrer, for want of equity, which was on argument, overruled by the Court. And it is to reverse this decision, that this writ of error is prosecuted.
It will be observed, that it is not denied that the case made by the bill, is a proper subject matter of injunction. The controversy is one of title.
His failure to make the test, was of itself a forfeiture of the privilege. But we are further of the opinion that he should have given notice of the result. This was not a secret to be locked up in his own bosom and suffered to slumber there, or be published, as future and more thorough experiments, the employment of new and improved machinery, or other circumstances might suggest. It was a thing to be done and declared within a fixed space, or it was forever too late. Deeds are to be taken most strongly against him who is the agent or contractor, inasmuch as the instinct of self-preservation will always make men sufficiently careful to protect themselves — verba fortius accipiuntur contro proferentem. And it would be manifestly wrong to hold, that McClure and Palmer were to be kept forever in doubt and uncertainty, as to the determination of House. All who might subsequently buy the land, had the right to know whether they took it with or without the burden. House’s notice that he had made the test, was therefore indispensable, according to the statements in the bill then, which are admitted by the demurrer to be true. Palmer took the title, discharged from the incumbrance.