Mathews v. Cody

60 Ga. 355

• Court: Supreme Court of Georgia
• Decided: February 22, 1878
• Status: Published

Opinion

Bleckley, Judge.

1. An injunction bill should be properly verified by some person acquainted with the facts, more especially where discovery is waived. In the present case, there was no sufficient evidence before the chancellor that the debts were not contracted on the faith of the property. It is a mistake to suppose that the complainant can waive discovery, and not take the consequent burden of making out the case at the interlocutory hearing, as well as at the final hearing.

2. Title to the land has been in the executor more than ten years, in his individual capacity. Code, §2922. Besides, the complainants have filed their bill, and can invoke the doctrine of Us pendens, (35 Ga., 213), and they could easily give actual notice to bidders at the sheriff’s sale. They need no aid from injunction, even if they have the better equity on the general case.

Cited for plaintiffs in error : Code, §2316; 1 Perry on Trusts, 138 ; 2 Serg. & Rawle, 521; 16 Penn., 499; 18 ; 14 Ill., 501; 42 Mo., 561; 28 Ill., 93 ; 14 Wis., 131; Story’s Equity, §1258 ; Code, §3119 ; 7 Ga., 534 ; 13 Ib., 88 ; 40 Ib., 535; 51 Ib., 180 ; Story’s Eq., §416, (note); 56 Ga., 79 ; Clancy’s Rights of Women, 4; 11 Ga., 25 ; 2 Atkins, 206; 2 Serg. & R., 491; 5 John. Chan. R., 196 ; 9 Ves., 175 ; 12 Ves., 497; 16 Mass., 480; 5 Pick., 468; 3 Desau Chan., 155, 160 ; 2 Call., R, 376 ; 24 Ga., 136; 35 Ib., 184; Green on Ev., §§197, 199; 27 Ga., 522.

Cited for defendants in error : 1 Ga., 324 ; 5 Ib., 56; 38 Ib., 581; 40 Ib., 363 ; 58 Ib., 494; 14 Ib., 224 ; Code, §2922 ; 24 Ga., 236.

Judgment affirmed.