Boyd v. Lofton

34 Ga. 494

• Court: Supreme Court of Georgia
• Decided: June 15, 1866
• Status: Published

Opinion

Habéis, J.

The injunction in this case was improvidently granted: we are persuaded it would not have been, had all the facts been before the Judge at that time, as fully as they were presented when the motion to dissolve was made and sustained.

It was a strange proceeding on,the part of complainant, in the uninterrupted possession of the mill, to seek to restrain respondents as he did. The defendants in error, by a special covenant in the mortgage which they took of Eavens on land in Terrill county, as security for the purchase money of the mill property, expressly reserved the right of peacable re-entry upon it, upon failure to pay as stipulated. Here was, then, a clear legal right which could not be gainsayed or restrained. There is no force in the position argued, that the mortgage was void as to the mill property, because it had not been recorded in Webster county, where it was situated. There was no mortgage whatever on the mill property; the title to it had never passed out of Lofton the vendor; he sold it to Eavens, simply giving his bond to make titles when all the purchase money was paid.

It would have been an absurdity, not having parted with his' title, to take a mortgage on what he already held by a higher tenure.

Judgment affirmed.