100 Ga. 292 | Ga. | 1897
Omitting immaterial matters, the facts of this case are as-' follows; William Hamilton, G. B. Hamilton and J. S..
The present action was brought by Tuggle, Stone, and ■¿he adminásfcraiti’ix of Henley, 'against 'the Hamiltons 'and. ■ James, to recover for an alleged breach of the warranty ■of title contained in their deed to Henley. By amend.ment, the administratrix was stricken as a party plaintiff,
It will be observed that the judgment in Langmade’s favor was rendered before either Tuggle or Stone became by deed connected with the title; and one of the questions discussed in the argument here was, whether or not, in view of ¡the fact just siMieid, these plaintiffs could, in ,any event,. maintain an action for a breach of warranty which had already occurred before they became actual and complete purchasers of the land. Our conclusion is that a decision of this question is not at all essential to a proper determination of the case. We think that, having voluntarily paid off the judgment in favor of Langmade over the objection of the Hamiltons and James, who had instituted and were earnestly endeavoring to maintain legal proceedings to have that judgment set aside, it wlas, 'in any event, incumbent upon Tuggle ■ and Stone to show affirmatively that these proceedings must necessarily have ended in failure. While the fact that Lang-made’s judgment had been affirmed by this court raises the strongest kind of a presumption that it was valid and should stand, such presumption is not absolutely conclusive and binding. Every lawyer knows that the records of our courts ■ will show numerous instances in which judgments obtained below and affirmed here have, for one reason or another, finally been set aside. We have no means of judging whether or not the motion for a new trial was meritorious; but there must have been at least a semblance of merit in the equitable proceeding, because it sufficiently impressed' the judge to warrant him in granting a restraining order. So long as this restraining order remained of force, the judgment was harmless as against Tuggle and Stone, and it seems ■ clear that they ought not to have cut off the Hamiltons and James from pursuing -as far as practicable the remedies they had caused to be instituted for the protection of the title •
Judgment affirmed.