No. 4397 | Ga. | Nov 22, 1924
1. The court was authorized to find adversely to the contentions of petitioner, that the decree and judgment, against the enforcement of which injunction is sought, is void, on the alleged ground that the attorney for the plaintiffs drew and placed in the hands of the clerk of the court a check to pay the jury which rendered the verdict upon which the judgment and decree is based. The affidavits submitted authorized the court to find that the judge, before rendering the decree, required the clerk to pay the jurors out of the proper funds, and that the check of the attorney for the plaintiffs was not used.
2. The court was also authorized to. find that the petitioner in the present case did not fail to file an answer setting up a defense to the suit on account of any fraud or fraudulent practices or representations made by. the attorney for the plaintiff, Tennessee Chemical Company. More- ■ over, it does not appear from the present petition that' the defendant had any valid defense.
3. The mistake in the official designation of the judge rendering the decree was an irregularity at most, a mere clerical mistake, and did not affect the validity of the decree.
4. It was competent for the court to render the decree appointing a commissioner to conduct the sale. This was strictly a judicial sale. It did not purport to decree a sale of the land itself.
5. Nor was it necessary, where the plaintiff was seeking merely to sell the equity of redemption, to pay off the prior lien so as to vest the title in the petitioner. The petitioner himself, the former owner of the land, had conveyed it by a security deed to II. Ci Humphries, and Humphries had transferred the evidence of the debt to Tennessee Chemical Company, and this canned with it the security.
6. As for the contention that there was a false description of the equity of redemption, because of the incorrect name of the holder of the prior lien, that can not avail the petitioner here. The misdescription occurred in the petition for a judgment and order to sell, and the petitioner in the suit that resulted in the decree could, if he thought it material, have had this corrected by filing an answer pointing out the misdescription. But from a reading of the entire petition, the decree, and the advertisement of the sale, it is clear that any one desiring to become a purchaser at that sale would know exactly what was being offered at the sale and what he was purchasing.
7. Erom what is said above it follows that the judge did not err in refusing an injunction. Judgment affirmed.