Clark v. Cleghorn

6 Ga. 220

• Court: Supreme Court of Georgia
• Decided: January 15, 1849
• Docket: No. 29
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

Two grounds of error are assigned upon the record in this case, to the judgment of the Court below.

First, because the Court overruled the demurrer to the complainant’s bill.

Second, because the Court refused to dissolve the injunction on the 'coming in of the answers of Morris and Clark.

[1.] With regard to the first ground of error, we are of the opinion the demurrer was properly overruled. The plaintiff in error insists that Cleghorn’s remedy on the covenants of his deed affords him ample protection, and that a Court of Equity will not Interfere to grant relief. If the bill disclosed, nothing more than that a title, with a covenant of warranty, had been made bythe vendor to the vendee, in the absence of any fraud or other equitable circumstance, the argument would be entitled to consideration; but here,- the complainant alleges that the vendor resides without the limits of the State, and has no property, to his knowledge, within the State. This is an equitable circumstance which, in our judgment, entitles the complainant to maintain his bill, when taken in connexion with the other allegations. The remedy on the covenant in the deed, against a non-resident who has no property in the State, would, to say the least, be very inadequate.

The main ground of the complainant’s equity is, that the land purchased by him of Clark, the vendor, is subject to judgments obtained against Rousseau, who, it is alleged, paid the purchase money for the land, although he never had a title thereto in his own name, but that the same was held in trust for his benefit by those from whom Clark derived his title, and that the land has been levied on to satisfy judgments against Rousseau, and claimed by the complainant, which he- fears will be sold for the payment of the judgments so obtained against Rousseau, of older date than his title from Clark. The object of the complainant’s bill is, to be protected against the alleged incumbrance upon the-property, and to enjoin the defendants from collecting the balance of the- unpaid purchase money therefor.

[2.] In Moore vs. Ferrell et al. (1 Kelly, 7,) this Court held, where the answer plainly and distinctly denies the facts and circumstances upon which the equity of the bill is based, the injunction will be dissolved. Now, here, the equity upon which the complainant’s bill is based, is the alleged trust existing for the benefit of Rousseau, the judgment debtor, which it is feared by the complainant, will make the land subject to his debts. The answer of Clark, who conveyed to the complainant, not only alleges he was a purchaser of the land, without any notice of the trust, but denies the existence of any trust. The answer of Morris admits that he contracted at one time with Rousseau for one half the land, but denies that Rousseau ever paid any thing for it, and that the contract was rescinded before he sold it to Clark. We think the answers of Morris and Clark are full and satisfactory, and deny the existence of any trust in favor of Rousseau, which can operate as an incumbrance on the property purchased by the complainant from Clark, and now in possession of the complainant, and that the Court below ought to have sustained the motion to dissolve the injunction.

Let the judgment of the Court below be reversed.