65 Ga. 103 | Ga. | 1880
This bill was filed by Alfred Iverson, as administrator of Alfred Iverson, Senior, against Mrs. Wilburn, the administratrix of Wilburn, deceased, for the purpose of setting aside a judgment confessed by Iverson, Senior, in his lifetime to said administratrix in June, 1872. The bill was filed in March, 1877. The ground on which it proceeds is that the judgment is founded on a land trade, in which Iverson, Senior, agreed to pay Wilburn, deceased, for a certain piece of land, bought in 1849,t0 be surveyed at the expense of Wilburn, at the rate of thirty dollars an acre, that there was a mistake in the survey by which the judgment was for too much, that it had all been paidj and the prayer is that the overplus be paid back to Iverson, as administrator. Both parties to the contract are dead. It is in writing. The survey was to be made to carry it out. No fraud is alleged against Wilburn, deceased. He handed the survey when made to Iverson. His offense hath this extent; no more. No reason is given why Iverson did not look into it at the time and see to it that it was right. While Wilburn was to pay for it, Iverson had rights equal to Wilburn to see to the survey and that it be done correctly. It seems to have been an innocent mistake of the surveyor, with no fault in Wilburn and no fraud on his part, and this mistake was not “ unmixed with negligence" in Iverson. Code, §3129.
The power to relieve against any mistake in equity is very limited by our Code. It must be “ exercised with caution, and to justify it the evidence must be clear, unequivocal and decisive as to the mistake ;” “ it must arise from ignorance, surprise, imposition or misplaced confidence.” Code, §3117. To relieve against a judgment, the rule is still more stringent. This judgment too was confessed, and by the party to the contract in his lifetime, and on consideration of a stay of execution. The administrator of Iverson has settled with the estate, and that
The contract was made in 1869, the judgment was confessed in 1872, payments were made on the contract before and after judgment by Iverson, Senior, in life, and by the administrator, to those who had bought the fi. fa. after administration. There seems to have been laches, negligence, all the way through. And in such cases equity will not grant relief—especially against a judgment,- and that confessed for a consideration, to wit: a stay of the execution. 13 Peters, 268; 15 Ga., 103.
On the whole, we are clear that there is no error in sustaining the demurrer and dismissing the bill.
Judgment affirmed.
