Cleckley v. Hull

30 Ga. 838

• Court: Supreme Court of Georgia
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

Was there equity in complainant’s bill ? We think so. Buying the judgment debtor, Danforth’s property as he did, he is an innocent purchaser, and as such, is entitled to the same protection that a security would be. Sheppard, with a full knowledge of this fact, extended indulgence from year to year, for three years, to Danforth, for a consideration paid to him annually in advance, until Danforth, who was solvent at the maturity of the mortgage debt, became insolvent, and then the attempt is made to subject the mortgage property to the payment of the debt.

If the facts alleged in the bill are true, the negroes bought by Cleckley of Danforth, are discharged from the mortgage lien. And as to Hull, he stands in no better situation than Sheppard. Under no circumstances is he entitled to control this mortgage security. If he voluntarily paid the debt of his principal, from which he was legally released, unless he consented to the indulgence given to Danforth, it is his own fault. And if he did consent, it would be as fraudulent in him to look to the mortgage property for re-imbursement as it would be in Sheppard to seek to make it liable in the first instance: 5 page Rep., 614.

Believing as we do, that there is equity in the bill, we should not be very strenuous as to the excuse rendered by complainant for not entering the appeal in the Inferior Court. His counsel was sick at the time the judgment was rendered, though in Court. Both of them were stricken down by disease immediately, and kept in bed, unable to attend to business until the four days had expired. Complainant called at their office, not knowing of their sickness; but not seeing them, he took it for granted that the business had been attended to.