32 Ga. 302 | Ga. | 1861
JBy the Court
delivering the opinion.
This is a case in which both parties are dissatisfied with the ruling, of the Court below; the complainant insisting that the Court should have granted a general injunction; and the defendant maintaining that none should have been granted. It is apparent that the answers of the defendants deny all the equity asserted in the bill; and had they stopped there, their position before this Court would have been tenable. But the defendant, Harkins, goes further, and acknowledges that, at the time, he, by request of complainant, purchased the claim, he promised that if complainant would pay the sum he (Harkins) was to pay for it, at the time such payment would become due, with interest, he (Harkins) would release complainant as to the balance; but that complainant had failed to comply with this condition, and he, (Harkins,) having, from his own resources, paid the sum at the time contracted, had assigned it to Arthur, the other defendant, communicating to him the above facts, and adding, that the time for compliance with this condition having passed, Arthur took the judgment re
The only ground for an injunction is furnished by this voluntary statement of Harkins. If the pleadings disclose any equity in behalf of complainant, it is to be found in the promise of the defendant, Harkins, making for the complainant a case different from that stated in his own bill. So we think the Court below must have regarded it. It would seem probable that the complainant was induced to confess judgment in part, at least by this, or a like promise, by Harkins. Out of this state of things might arise an equity, but the question would again occur, whether he had not lost that equity by failing to make payment, as he had contracted to do.
Here would arise the question whether or not, in this case, time was of the essence of the contract; and this question has not been discussed before us. "We are of opinion that the Judge very properly refused a general injunction. We think, too, that in view of all the circumstances of the case, it was proper to grant an injunction for the excess above the $200 00, and interest actually paid by Harkins, but only upon terms. The order of the Court was too liberal to the complainant. Before asking equity he should do equity. The defendant should not be tied up as to a part, and left to take the chances of getting the remainder, and subjected to the law’s delays. The order should have been, that upon payment, by complainant to the defendant, Arthur, of the sum paid by Harkins, with interest, injunction issue for the remainder due, until the further order of the Court. As to the relation sustained by Arthur, as assignee of the judgment at law, to the case, we need only say that the settled doctrine of this Court is, that the assignee of a judgment takes it subject to all the equities between the original parties.
Let the judgment be reversed.
