Smith v. Phinizy

71 Ga. 641

• Court: Supreme Court of Georgia
• Decided: September 11, 1883
• Status: Published

Opinion

Jackson, Chief Justice.

1. Equity is loth to open a judgment at law and let in defences which could have been made in defence when the case was on trial at law, and before the judgment was rendered; and it will never do so, when the negligence of the defendant at law is the reason given, or apparent from the facts, why the defence was not made. 1 Kelly, 138 ; 2 Ib., 280; 4 Ga., 176 63 Ib., 627.

That principle rules this case. Phinizy’s deed of the land back to Durham was made the same year that Durham deeded it to him, and recorded. Durham, for whom the complainants were sureties, became bankrupt; Phinizy sued the note, yet these sureties of a bankrupt did not inquire at all about the security which the land, while Phinizy held it, was to him and to them; nor did they look on the record-book of deeds, open to them, to see whether or not it had been parted with by Phinizy, who was their trustee in law to hold it for them. This laches shuts the door of equity to them, when they seek to set aside a judgment which slight diligence .could have prevented from being had.

2. Besides, the suit at law itself gave them notice that the land was not available to Phinizy. It was not sued for by' him, and judgment asked to condemn it. The presumption is, that the execution follows the judgment, and that the judgment does not go beyond the pleadings, but follows the declaration. The execution appended to the bill is a plain one for money—a general execution; the judgment, it is therefore presumed, was general, and the declaration was simply against the principal and sureties, and not for any special judgment against the land which Phinizy held as security; so that the sureties were put on notice that Phinizy did not seek to go on the land, and the question must have arisen, has he abandoned it, and why? If he has, he has discharged us, and we must plead the discharge. Napier vs. Salisbury, Respess & Co., 63 Ga., 477, 480.

So that, not only was the record open to the complainants, inviting their diligence, and the bankruptcy of their principal known to them, demanding their vigilance about this landed security, but the failure of the payee of the note to assert his lien on the land, and to get a special judgment condemning it, appearing on the very face of the declaration against them, cried to them in a still louder voice, “ Look out for your landed security.” Yet, even this failed to awake them, and they slumbered on until the fatal judgment made that slumber the sleop of death. “ Vigilantibus non dovmientibus jura subveniunt.”

Judgment affirmed.