67 Ga. 744 | Ga. | 1881
This was an action of ejectment brought in the statutory form by a trustee for his wife and children to recover a tract of land bought at sheriff’s sale of the property under a judgment of foreclosure of a mortgage against the husband and wife. The verdict is for the defendant; there is no motion for a new trial, but error is assigned upon divers rulings of the court on the admission or rejection of testimony and in charging the jury. The bill of exceptions is expanded over great territory, and much of that territory at first glance looks like a wilderness of confusion, as if the purpose of the plaintiff in error had been to procure a new trial, not so much by making errors appear plain, as to make the whole case a labyrinth of uncertainty.
The defendant is an innocent purchaser for value without notice of the equity of the minors, on whose equity the plaintiff in error relies. That is a secret equity, nowhere on -record, nowhere even in:writing, but resting in the breasts of the father and mother who made the mortgage, and borrowed the money to .buy mules to run the farm which fed the family, the minors included.
It is sought at law, in a complaint for land, to do what a court of equity will never do — to correct a mistake in a deed against a purchaser for value without notice. Code, §3119-
Coúrts of equity hesitate, in any case, to correct such ■mistakes, and require strong, unequivocal and decisive proof. Code, §3117. . .
The proof, in this case, would hardly do, even against one who knew all about the deed and that something was left out; but against an innocent purchaser without any notice, it amounts to nothing. The very people who mortgaged the land, are trying to show that they could not, in law, do it for reasons that nobody but themselves knew. The only claim made of notice is, -that defendant was put on enquiry; but where would he enquire? If he looked at the deed, he woúld see title in the husband -for the use of the wife; if he had enquired of the mortgagors, th.ey would hardiy have divulged the secret equity which would have prevented the loan of the money; so that he could not have got knowledge, no matter where he looked. Nothing was of record,, nothing-appeared on the unrecorded deed, and nothing would have been told by the only people who
It was not to pay the husband’s debt, but the wife’s, according to the evidence; and the mules bought were to run her farm. So that, in every view, the verdict is right and the judgment must be affirmed. The possession of the minors was notice to nobody. They lived with their father, and their possession was his. He is the head of the family.
See Code, §§1753, 1783, 2327, 3092, 3577, 3593, 3962; 7 Ga., 530; 40 Ib., 259; 42 Ib., 95; 60 Ib., 189; 21 Ib., 463; 25 Ib., 330; 62 Ib., 20; 63 Ib., 307; 59 Ib., 69; 61 Ib., 345, cited by defendant in error.
Judgment affirmed.