17 Ga. 420 | Ga. | 1855
By the Court.
delivering the opinion.
It is a well settled rule, that a parol rescission or mutual release of a contract in writing and under seal, for the sale of lands, may be admitted as sufficient evidence of such release, if the rescinding contract has been executed. (1 Greenlf. Ev. 302. 1 Phil. Ev. 565. Dearbon vs. Cross & Thrasher, 7 Cow. 48.)
Whether or not such agreement to rescind the contract in this case had been executed, was properly submitted to the Jury by the Court.
For the purpose of proving the rescission of the written contract in this case, by parol agreement between the parties thereto, the testimony of Burrell Orr, to which objection has been
There was no allegation by the creditors of Weir, of any fraud on the part of the defendant in error in the final sale of this land; though it is charged in the bill to have been worth more than this sum. But it is difficult to conceive a reason why Worthy should not have sold the land for as much as he could get; and no such reason is suggested. If, then, .there was no fraud by him in the sale of the land, and the same were fairly made, there would be no justice in allowing the creditors (if entitled to recover any thing from him by setting aside the rescission of the contract) to recover more than that sum for which, in good faith, he had sold the land. And this seems the more equitable, when it is considered that there is no sufficient or distinct allegation of fraud in the transaction between Weir and Worthy, or committed by Worthy in the rescission.
This testimony of Trice was accordingly not proper or material.
Viewing the circumstances of this case as we do, we are of the opinion that the defendant was under no obligation to accept this proposition. But the conclusive criticism is, that there was no mutuality in the arrangement proposed. The plaintiff in error had not administered, but simply proposed to administer, if defendant would give up the land. He had, therefore, no right to contract in the premises, and if not, defendant could not have made any legal and binding agreement with him, and his right could not be affected by a refusal to ac
In our opinion, taking into consideration the case as made by this bill, and the facts which were in evidence, this charge was was not authorized. But the Court gave them a charge quite as much, if not more to their interest. This charge was asked with reference to the right of creditors, as presented by the allegations of the bill, to have the value of this land at the time of the rescission (deducting purchase money and expenses) paid to them. And on this head, the Court instructed the Jury, that “ parties had not a right to make any contract or agreements to hinder and delay or defraud creditors, either for the benefit of the defendant’s family or otherwise.” And further, that “ if they believed the acts of Allen Weir and the defendant worked an injury to the creditors, it was not necessary to believe it was done with design, in order for the creditors to have relief.” This was going very far, indeed, under the facts of this case, and was quite as much in favor of the complainant as he ought to have desired.
The Court further charged, that “ if the rescission of the contract and its execution have not been satisfactorily established, you will decree for the complainant the surplus in the defendant’s hands, arising from the re-sale of the land to Freeman, after re-imbursing him for all he paid to Roberts, with interest.”
Looking to the allegations of this bill, and taking into consideration the proof, if there had been no rescission of the contract, unless the defendant acted fraudulently in disposing of the land to Freeman, he should not have been held liable for more than the amount which the Court here authorizes the Jury to find, whether the transaction was regarded as an equitable mortgage or not. So that the rights of complainant
Judgment affirmed.