Markham v. Hunnicutt, 43 Ga. 449

Markham v. Hunnicutt

43 Ga. 449 | Ga. | 1871

Warner, Judge.

This was a bill filed by the complainant against the defendant, praying for an injunction to restrain the defendant from selling a certain described city lot, it the city of Atlanta, by virtue of a mortgage fi. fa. in favor of the defendant, as mortgagee, against one Holmes Sells. It appears from the evidence in the record, that Sells executed a mortgage to the defendant, for the lot in controversy, on the 19th day of July, 1866, which was duly recorded on the 20th day of July, 1866; that afterwards, an agreement was entered into between the defendant and Sells, the mortgagor, that the lot should be sold by Sells and the proceeds of the sale be applied to the payment of the defendant’s mortgage debt; that on or about the 21st day of March, 1867, the lot was sold by Sells, at public auction, by his agent, Adair, and purchased by the complainant, Hunnicutt, for the sum of $1,457 00, Sells making him a deed to the lot as such purchaser. The complainant alleges that he had no actual notice of the defendant’s mortgage, that the defendant was present at the sale of the lot, when it was announced by the auctioneer that the title to the lot was good, and the purchaser thereof would obtain a clear title, etc., that when the complainant had bid for the lot nearly its full value, the defendant said to him that it was good property and worth more than was being bid for it, the complainant continued to bid for the lot until it was knocked off to him as the purchaser thereof, the defendant gave no notice of his mortgage lien, nor said anything about his having a lien on the lot. It was insisted on the trial, that the presence of the defendant at the sale of the lot, his silence in regard to his mortgage lien on the property, and his encouraging the complainant to bid for it, by saying to him that it was good property and worth more than was being bid for it, when taken in connection with the fact that the property was being sold by the consent of the defendant, as mortgagee, and the proceeds of the sale were to be applied in payment of his mortgage debt, was such a fraud upon the *456complainant, as a purchaser at the sale of the lot, as will now estop the defendant from setting up and enforcing his mortgage lien against the property. On the trial, the jury returned the following special verdict: “We, the jury, find that Marcellus O. Markham was present at the sale made by George W. Adair, auctioneer, of the property of Holmes Sells, on the 13th of September, 1866, at which Calvin W. ■Hunnicutt became the purchaser of the lot described in exhibit C, attached to the within and foregoing bill, and that said M. O. Markham was then and there present and assenting to said sale.” On this special verdict, the presiding Judge entered a decree that the defendant be estopped from enforcing his mortgage lien upon the lot purchased by the complainant, and perpetually enjoining him from doing so. The defendant made a motion to set aside the verdict and decree, and for a new trial, which was overruled by the Court, and the defendant excepted. It is true, that the jury in equity causes, may find a special verdict decreeing the performance of a specific duty by the defendant, and when that decree is found by the jury, upon the facts ascertained by them, it is made the judgment of the Court, when approved and signed by the presiding Judge as Chancellor, and .entered on the minutes of the Court. Under our system of equity practice, where any question of fact is involved, the same shall be decided by a special jury: Code, 4147. In this case, the question of fact involved was, whether the conduct of the defendant at the time of the sale of the lot, was such a fraud upon the complainant, as would, according to the principles of justice and equity, estop the defendant from enforcing his mortgage lien against the property, and whether, under the evidence in the case, he should be perpetually enjoined from doing so? That was a question for the jury to decide, and if the jury had found a special verdict that the defendant should be perpetually enjoined from enforcing his mortgage lien against the lot purchased by the complainant, the legal presumption then would have been, *457that the conduct of the defendant at the sale of the property, was a fraud on the complainant, otherwise they would not have found a verdict in favor of a perpetual injunction. But the jury have not, by their verdict, found and decreed that the defendant should be perpetually enjoined from enforcing his mortgage lien against the property, which it was their duty to have done, if they believed, from the evidence, that the conduct of the defendant, at the time of the sale, was a fraud upon the complainant. All that the jury have found by their verdict is, that the defendant was present at the sale, and that he was then and there present and assenting to said sale. Whether these facts were or were not sufficient, in the opinion of the jury, to establish fraud on the part of the defendant, the verdict is silent. The legal presumption is, that, inasmuch as they did not find and decree a perpetual injunction by their verdict, they were not satisfied in relation to that material fact in the case. And until the jury had so found by their verdict, it was error in the Court to have entered a decree for a perpetual injunction upon that verdict. The material issue in the case was fraud or no fraud on the part of the defendant at the sale of the property, under the evidence, and the jury have not, by their verdict, found for or against that issue. And they not having done so, the Court could not assume that they had, and enter a decree of estoppel thereon; for no fact can be presumed to have been found by the jury other than those which appear in their special verdict. If there was fraud proved on the part of the defendant at the sale of property, sufficient under the law to estop him from enforcing his mortgage lien, then the jury should have decreed, by their verdict, a perpetual injunction, and if not, then they should have found a verdict for the defendant. As there is to be a new trial in the ease, we express no opinion in regard to its merits, under the evidence disclosed by the record.

Let the judgment of the Court below be reversed and a new trial ordered.