Lee v. Clark

49 Ga. 81 | Ga. | 1872

Lead Opinion

McCay, Judge.

1. There was no error in dissolving this injunction. This Court, in the case of Jones et al. vs. Macon & Brunswick Railroad, 39 Georgia, 138, has held that to justify the use of this extraordinary writ the statements of the complainant must be positive, and within his own knowledge, or if he cannot say this, but relies on information and belief, he must bring with him the sworn statements of those who do know. And this is only a reasonable and proper requirement. The whole equity of this bill turns upon the message received by the complainant from Dr. Conyers. The bill does not say this message was sent by Conyers within the personal knowledge of the complainant. Indeed the inference is rather to the contrary. This brings the case within the decision referred to, and the injunction ought never to have been granted without other evidence.

2. But we are clear there is equity in the bill. It alleges that the complainant received a message from Dr. Conyers that he might safely make the deed, as he would take Confederate money from Horton; that as he knew Horton had the money, and was anxious to pay it, he did make the deed. True, it is not stated positively that Dr. Conyers sent the message, nor is any precise date stated. But the other facts stated show when the exchange of lands was made, and it is said this occurred shortly after. As to the want of a positive statement, that it is true, is a good reason why the temporary injunction should not be granted. But does that make the bill subject to demurrer ? The demurrer admits as true all that is stated. It therefore admits that complainant “ received a message” from Dr. Conyers as stated. Could he have received the message if it had not been sent. If I say I received a message from A, and he comes into Court and admits I did so, does he not admit that he sent it ? And if it be proven on the trial that complainant did receive such a message from Dr. Conyers, no jury would hesitate to decree on that proof, since it is impossible that he should receive such a message unless it was sent. If such a message was sent to complainant by Dr. Conyers, and complainant received it and acted on it, we think that discharged the lien of the mortgage. Nor is there on this contract (for a contract it is, if the facts be proven, since it was a proposition of one, on which the other acted to his own hurt,) any remedy at law. With this contract Horton had nothing to do. As to him Conyers might repudiate it, but as to complainant he could not, since he had acted on it, and put himself in a new and not so good a position. He has no remedy against anybody on this contract, except the very remedy he asks, to-wit, the release of his land from this lien.

We think, therefore, there was equity in the bill, and the Court erred in dismissing it.

Judgment reversed.

TripPe, Judge, concurred, but furnished no opinion.

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Dissenting Opinion

Warner, Chief Justice,

dissenting.

This was a bill filed by the complainant against the defendant, praying for an injunction to restrain the sale of certain described tracts of land under a mortgage fi. fa. which had been levied thereon. The injunction prayed for was granted, and afterwards, a motion was made on the filing of defendant’s answer, to dismiss the complainant’s bill for want of equity, and to dissolve the injunction. On the hearing of this motion the Court sustained the demurrer to the complainant’s bill, and dismissed it, whereupon, the complainant excepted. The alleged grounds of equity in complainant’s bill are, that he was the owner of a settlement of land in Newton county, known as the Hammock, Gill and Corly place; that one Turner Horton was the owner of a settlement of land in said county, known as the Whatly place; that on the ...... day of ......, 18..., the complainant and Horton agreed to exchange the aforesaid settlements of land; but before the deeds were executed, Horton informed complainant that he had purchased his settlement of land from Clark, and that a part of the purchase money due therefor was unpaid; that Clark had transferred his claim to the money due therefor to Ur. Conyers, then in life, but now dead; complainant then declined to execute a title to Horton for his settlement of land, but instead thereof, executed to him a receipt in the nature of a bond for title, conditioned to make a title when the unpaid purchase money due for the land should be paid by Horton. Complainant taking a deed from Horton for his settlement of land, knowing, as complainant alleges, that said Horton was fully able to meet and discharge said liability for the unpaid purchase money, went into the possession of the land, and has continued in the possession of the same up to the present time. Shortly after the complainant had executed and delivered his bond for title, as before stated, to Horton, the latter sold the land described therein to Zachary, and transferred to him his said bond for title. The reason why the purchase money had not been paid by Horton for the land, the complainant states from information and belief, was that Conyers was unwilling to take Confederate money for the debt, but complainant believed he had protected himself by retaining the title in himself to the land sold to Horton until the purchase money for the land bought by him from Horton should be paid. Complainant alleges that, sometime about the ...... day of ......, in the year 1860, he received a message from Conyers that he would receive from Horton Confederate money in payment of said claim, and that he, complainant, might safely execute a deed for the land to Zachary, which he had sold to Horton, and which the latter had sold to Zachary; that relying on this message from Conyers, and knowing that Horton had the money in hand and was anxious to pay it, he did, on the ...... day of......, 18..., execute a deed for the land to Zachary and took up his bond for title, and complainant has been informed and believes, that immediately after he had executed the deed for the land to Zachary, Horton tendered to Conyers Confederate money sufficient to pay the principal and interest due on the aforesaid claim, and complainant believed the whole matter was settled until the 29th day of October, 1868, when he was notified that the sheriff had levied a mortgage fi.fa. on the land, which mortgage had been given by Horton to secure the payment of the purchase money for the land, and had been duly recorded.

Such are, substantially, the allegations in the complainant’s bill. If the allegation in the bill is to be literally construed, that the message from Conyers that he would take Confederate money was received by the complainant in 1860, then it was before Confederate money was issued; but if it was intended to mean that it was in 1860, 1861, 1862, 1863, 1864, or 1865, or in some one of those years, then the time is too uncertain and indefinite, because it would be much more improbable that Conyers would have 'sent a message that he would take Confederate money in 1864 or in 1865, than in 1862 or in 1863. But there is no allegation that he refused to take the Confederate money when Horton tendered it to him at any time. Who the messenger was is not stated, whether white or colored, male or female, and it is a significant fact, that the affidavit of that messenger was not produced on the motion to dissolve the injunction; but after all, the complainant’s allegations only amount to this, that somebody told him, at sometime, that Conyers would take Confederate money for Horton’s mortgage debt, and that he might safely execute a deed to Zachary. Whether Conyers ever told anybody that he would do so, we do not know, and to charge Conyers, after his death, with having discharged his mortgage lien on Horton’s land, upon the mere say-so of a nameless messenger, would be without a precedent in the history of judicial proceedings. The allegation that the complainant received the message from Conyers, as stated in the bill, necessarily implies that he must have received it through a messenger; in other words, that messenger told the complainant what Conyers said, but that nameless messenger may not have told the truth in relation to the matter, and Conyers would not be bound because that messenger told the complainant he had sent such a message. As to Conyers, it was only the declaration of some third person; as to the complainant, it was only hearsay evidence, and nothing more, especially as the complainant does not allege that he believed it to be true. The allegation that the complainant received the message from Conyers, necessarily depends on the fact that the nameless messenger told him so. In other words, I received the message from Conyers because the nameless messenger said so, or told me so, and that is all that allegation.

Besides, this mortgage debt due by Horton for the purchase money of the land sold by him to the complainant, was an incumbrance on the land at the time of the sale, and there is nothing in the bill which goes to show that the complainant has not an ample common law remedy on his deed from Horton to him for the land — no charge of insolvency on the part of Horton. If the complainant chose to act upon the information of this nameless messenger, which he does not even allege he believed to be true, without inquiry of Conyers as to the truth of his statements, and make a deed to Zachary, it was his own fault, and a Court of equity will not assist him, the more especially as he has his remedy on Horton’s deed to him, if the land purchased from Horton should be made subject to the payment of the mortgage debt. Horton is the real party interested to have the mortgage lien removed from the land, instead of the complainant. The allegations in the complainant’s bill are to be construed most strongly against him, especially when the process of injunction is prayed for, and if he cannot recollect as to the time when material transactions took place, the Court will not recollect it for him.

The demurrer to the bill only admits such facts as, in the judgment of the law, would entitle the complainant to the relief which he seeks. Would the allegations in the complainant’s bill, if proved at the hearing as therein set forth, entitle him to a decree setting aside and canceling Conyers’ mortgage lien on Horton’s land ? If they would, then the injunction should have been retained, but if they would not, and, in my. judgment, they would not, then there was no error in the Court below in sustaining the demurrer, and dismissing the complainant’s bill for want of equity.