30 Ga. 47 | Ga. | 1860
By the Court.
delivering the opinion.
The complainant filed this bill returnable to the October Term, 1858, of Gordon Superior Court. At that term the defendants to the same appeared and put in a general demurrer for the want of equity, and after argument had, the Court overruled the same at that term. From this judgment no.appeal or exception was taken by defendants, but they then put in their answer, and at the April Term, 1859, moved to dissolve the injunction on the ground that the equity of the bill was fully denied by the answer. Upon this motion, the Court “ dissolved the injunction and dismissed the bill, on the ground that there was no sufficient allegation of irreparable mischief, to restrain the trespass, and that the injunction was improvidently granted.”
This judgment we are called on to review, and it is insisted by counsel for defendants, that, although the Court below may have improperly dismissed the bill, and dissolved the injunction on the wrong ground, or for a wrong reason; yet, as the true question before the Court, was a motion to dissolve the injunction on account of the denial of the equity of the bill by the answer, so, that is, or ought to .be, the true question before this Court; and if we should be
The equities of the bill are, that the Inferior Court of Gordon county, being the owners of that part of lot No. 191, in the 14th district and 3d section of said county, on which was situated the bridge across Oostananla river, built by Washington Lawson, having purchased the same at sheriff’s sale as the property of said Lawson under executions against him, did on thirty-first day of October, 1855, sell the same to one Newton MeDill for the sum of $1,500, which has been fully paid to the Inferior Court of Gordon county, the whole of which has been received and appropriated to the use and benefit of the county of Gordon; that to induce MeDill to make that purchase, the then said Inferior Court represented to him that the tolls from the bridge would yield him the net sum of $100 per month; that the said Court would establish the road-crossing on and at that bridge as a public highway, and they as a Court would by its order vest in him the right to charge toll on all persons crossing, at a tariff of tolls to be fixed by the Court; that MeDill did purchase on these representations and inducements; that the Inferior Court in compliance with their agreement, and in execution of this contract, did on the same day of the sale pass an order of that Court changing the road leading to Lawson’s ferry, so as to cross on that bridge, and authorizing MeDill to establish the rates of toll on said bridge, said order being subsequently amended so as to read “and the same is made a public highway from the time of Newton McDill’s” purchase from the Inferior Court; and in this amended order the rates of toll were fixed and prescribed by that Court for all crossing on the bridge with this single qualification, that persons hauling grain or desirous of trading in Calhoun would be charged but half price. That three of the members of the Court on the day of sale gave to MeDill their bond to execute titles to him or his assigns on the payment of the purchase-money, for the faithful performance of which they not only bound themselves individually, but also their “successors in office as Justices of the Inferior Court
The defendants, in reply, after admitting that they know nothing of the representations made to McDill, or of the inducement held out by their predecessors to McDill to buy the premises, deny that their predecessors sold the premises to him as the Inferior Court of Gordon county for $1,500 00, or any other sum, or that they as a Court bid off the premises; but if they did buy or sell the premises to McDill, they did so as individuals, and not as a Court as they, defendants, are unable to find on the minutes of the Court any order authorizing such purchase or sale, and this is the whole extent of their denial. Do they deny that their predecessors in the purchase of the lands at sheriff sale, and in its subsequent sale to McDill acted in their representative character for the benefit of the Court of which they were members, and of the county which they represented, or that they in doing so made the representation, and held out the inducements to McDill as charged in the bill ? Do they deny that the Court and the
It appears from the answer, that when Lawson projected the building of this bridge, the Inferior Court for the purpose of securing a free passage for the citizens of Gordon county across the bridge, at first subscribed and paid to Lawson $500 00, in consideration of which sum, Lawson agreed that the citizens of Gordon might pass over the bridge; that subsequently as the bridge advanced, Lawson, from his embarrassments, was about to fail with the bridge, and the Court to prevent such failure, borrowed from G. P. King $3,000 00 on the note of the county, and paid it over to him to aid in the building of bridge, which sum was to be refunded to the Court when collected from subscriptions, and that the Court again contributed $500 00 more to aid him in repairing a damage done to the bridge by freshet, making in all about $4,000 00 that the county of Gordon, through its Inferior Court, had invested in this bridge, while in the hands of Lawson, to enable him to complete it so as to secure to the citizens the free use of the bridge. Right here the defendants plant them
The sheriff’s deed to Newton McDill recites the fact, that this property was bid off on the first Tuesday in September, 1855, at the sum of $2,355 00; that is, that the creditors of Lawson realized from that sale only that amount for all that property. I take it from this, that the Inferior Court bid off the property at that price. Now, if this is the fact, there is one view of the case that surely neither the present Inferior Court, or the citizens of Gordon County, have taken of this transaction, or that sense of justice and right, which ought to animate and control the action of all tribunals as well as of individuals, would have impelled a more charitable feeling and conduct towards the complainant and his right in this property.
That sum, $2,335 00, was the bid of the Inferior Court;
Defendants admit that they have instructed road commissioners to remove the toll gates and keep open the same for the free passage of the citizens of the county; the infliction of the fine; the passage of the order, etc., and plead as a justification or excuse, the recommendation of the grand jury of the county. The unauthorized action of any body of men, however respectable, can never excuse an independent judicial tribunal for an invasion of the rights of an individual unheard.
It is said by the defendants in their answer, by way of an avoidance of the equities of the bill, that the sheriff’s sale was illegal; that no title passed; that the land was not legally sold ; that the bridge was not sold; that the bid of the Inferior Court was not legally transferred, etc. Then it is of the greater importance that the bill should be retained to settle and quiet the title to the premises, and if it be true that no title did pass to McDill, the county of Gordon surely, under the circumstances, would refund the purchase money. If the facts in this bill are true, it does not lie in the mouths of these defendants to cast a cloud on the complainant’s title.
For these reasons, and as the answer does not fully and completely deny the equity of the bill; the judgment of the Court dissolving the injunction and dismissing the bill was erroneous, and must be reversed. The injunction, as well as the bill, must be retained to a hearing on their merits.
It was argued with great force by counsel for defendants, that the judgment of'the Court below ought to be affirmed, because they argue there was no equity in the bill; that complainant’s remedy at common law in trespass was adequate and complete; that this bill could not be maintained
Judgment reversed.