109 Ga. 419 | Ga. | 1899
On the 9th day of September, 1899, Mrs. Fannie E. McDaniel presented to the judge of the superior court of
It does not appear that any supersedeas was granted to the plaintiff on her writ of error, nor that defendants had any knowledge of the petition before sale day. If, therefore, the land was sold on the day it was advertised for sale, a judgment of reversal by this court would appear to be nugatory. But as it does not appear from the record or otherwise that such sale has taken place, the case is decided on its merits. The only question for consideration is whether or not the allegations in the petition present a case for the equitable relief sought. There is no charge of insolvency of defendants, or either one of them, and no reason given why she should have the extraordinary remedy of injunction for which she prays. The contract between her and the defendants gives them the power to sell the land in case of default on her part in the prompt payment of either note. The only way in which she could have defeated the exercise of this power was to pay the notes; and the fact th?lt she had an account against one or both the defendants to the amount of her indebtedness to them could not operate per se as a cancellation of their contract touching the sale of the land. The remedy on her account is by suit at law, and no reason is assigned in the petition why it is not ample and sufficient. The remedy of the defendants for the recovery of their money on the land is under contract, which, it appears from the petition, they were pursuing. The court, therefore, did right in refusing to grant the injunction prayed for.
Judgment affirmed.