15 Ga. 103 | Ga. | 1854
delivering the opinion.
An action of ejectment was brought by John S. Taylor, against Andrew Sutton, to recover lot No. 90, in the lfith district of Dooly county. On the first trial, the defendant confessed judgment, with liberty of appeal. He entered an appeal, and again confessed judgment. He now files his bill for a new trial, and general relief.
He states, amongst other things, that this tract of land was drawn by one Hugh F. Rose, to whom it was granted by the State; that it was sold, in 1846, under a Justice’s Court execution against James B. Boyer, as administrator of Rose, the grantee, and bought by one William Mims, who conveyed the lot to complainant; that the property was in the woods at the time; that he went into possession and made valuable improvements before the action of ejectment against him, in 1850; that he was compelled to confess judgment, as he had no means of defending his possession against the title of the plaintiff, which consisted of a copy-grant from the State to Rose, and a deed from Rose to Taylor; that it is true that the deed contained a condition, to the effect that the conveyance was to be void, provided the purchase-money, ($150,) was not paid, but that he was unable to prove that the same had not been paid.
That after the recovery in ejectment was had against him, he called upon Taylor, the plaintiff, to obtain some indulgence, in not being immediately turned out of possession, when Taylor informed him that he had no interest in the premises, whatever, and never had had; that one Eli Benson purchased the lot of Rose, and gave him his notes for the consideration money, and had the deed made to him, (Taylor,) but that neither-Benson, who was insolvent at the time, and died so, nor himself, had ever paid one dollar for the land.
That he Vas induced, by the importunity of one William Brown, to make to him a quit-claim title to the property, which he did, with a full knowledge, on the part of Brown, of'
The bill further alleges that complainant called on Boyer, who informed him that he found the notes for the land among the papers of Rose, his intestate; that in 1844 he called on Benson, the maker, who was then in life, for payment of the purchase-money, but. that neither he nor any other person had ever paid the notes. Boyer’s affidavit, containing these statements, was appended to the sworn bill.
A demurrer was- put in to this bill and over-ruled; and this writ of error is prosecuted to reverse this decision.
Is the bill maintainable ?
But now, the thing is changed, and it is the every-day practice to grant new trials at Law, and upon the most equitable principles. And Courts of Chancery seldom, and always reluctantly, interfere for this purpose.
In the judgment of this Court, all these grounds satisfactorily appear in this bill. Until the application by Sutton to Taylor, for indulgence, he was totally ignorant of the matters which he seeks to set up for his defence. Nor is negligence justly imputable to him. The whole face of this proceeding was calculated to mislead him. True, he saw on the face of the deed from Rose to Taylor, that if the purchase-money was not paid, the title should be void and the land revert to the vendor ; but could he doubt but that Taylor, the feoffee, was the true owner ? And from the length of time which had elapsed, ten years, and the pecuniary ability, as well as respectability of Taylor, the apparent vendee, he had every reason to suppose that it was paid. Nor is he to be held responsible for not applying, directly, to Taylor, for information in the first instance. He was the party plaintiff, and ostensibly pressing the suit; and the knowledge which he .acquired was wholly accidental. If ever there was a case of surprise, this is one..
It is objected that Taylor’s affidavit should have accompanied the bill. He may or may not have been willing to furnish it voluntarily—Mr. Sutton had no right to ask him to give it. Besides, Taylor being the lessor of the plaintiff, and a party to the record, as well as the grantee of the deed, his admissions are sufficient, and these are sworn to by Sutton.
.But this idea was pointedly repudiated by Lord Mansfield, as far back as 1768. In Goodtitle vs. Clayton, (4 Burrows, 2224, 2225,) he said, it had again and again been done. And he gave this very sensible reason for it, that while it was true, that the defendant was not estopped from renewing the action against the plaintiff, still he would be turned out of possession in the mean time, and thus sustain an injury as well as an in•convenienee.
' Sere the defendant has lost, without fault on his part, the 'opportunity of obtaining a new trial at Law, inasmuch as he 'did not get a knowledge of the facts, in time to make his application to the Court, when the judgment was recovered.— [Besides, the remedy at Law would not be as complete. There, 'he could only defend himself against the present suit, which mould be renewed against him, until prevented by a bill of peace, whereas, by his bill, under the prayer for general relief, he would be entitled to a decree, provided the proof should warrant it, to have the deed itself delivered up to be can--celled; and thus be protected from future harrassment.
For these reasons, we hold that the Court was right in overruling the demurrer, and requiring the bill to be answered.
This proposition is .too broad. It would defeat every conditional deed, and convert it into an absolute fee. In all such conveyances, the fee is first conveyed ; and then follows the condition upon which the fee is either vested absolutely or defeated. All mortgages at Common Law are in this form.— First, the fee is granted, and then the condition annexed, that upon the payment of a certain sum, at a stipulated time, the title is to be void.
Our conclusion, therefore is, ¡that the testimony, if obtained,