Thrasher v. Partee, 37 Ga. 392

Thrasher v. Partee

37 Ga. 392 | Ga. | 1867

Habéis, J.

Dawson B. Lane, the farther of Mrs. Partee, was the executor of the will of ¥m. Stallings, her grand-father, and by which will considerable property was devised to her, and he made the testamentary guardian of the person and property so given to his children. Lane having failed to pay over the property so devised to this daughter, he having mismanaged and wasted her property, and become embarrassed, if not insolvent, this bill after her marriage with Partee, was filed in their joint names to trace a part of the proceeds devised to Mrs. Partee, and which had been invested in lands by Lane in his own name, and on which lands the defendant, Thrasher, had taken a mortgage to secure a large loan of money made by him to Lane.

*396Thrasher answered the bill; averred the bona fide character of his loan to Lane, and that he took the mortgage on the land for his security, without notice of any trust at the time, in said land for Mrs. Partee. Upon the filing this answer, his counsel moved to dismiss the bill for want of equity. This motion was properly refused. The bill, if not making a case for a Court of Equity, should regularly have been disposed of by demurrer, though oftentimes during the progress of a trial a bill is dismissed, on motion, when it becomes apparent that the complainant is not entitled to relief. It was not contended that the bill had no equity, but the motion proceeded from the misconception that the Court could decide that complainants were entitled to no discovery, and no relief whenever a full answer was filed.

Another motion, however, was made by Thrasher’s counsel, which we are of the opinion the Court below should have acceded to. The injunction restraining the levy and sale under the mortgage fi. fa., should have been removed as there was no allegation in complainant’s bill which imputed bad faith, or fraud, or notice, or knowledge of any trust in Lane for Mrs. Partee to Thrasher at the time, or previous to his taking the mortgage on the land, alleged to have been purchased with the proceeds of property devised by Stallings to Mrs. Partee; and Trasher, having, by his answer, fully denied all notice or knowledge of any trust and (sworn) that the transaction was bona fide, and upon a valuable consideration, we can perceive no sufficient reason for retaining the injunction to the hearing.

Judgment reversed.