By the Court.
Jenkins, J.
delivering the opinion.
Defendant, in the Court below, moved to dismiss the Bill, first, for want of jurisdiction in the Court, and, secondly, for want of equity in the Bill.
He also moved to dissolve the injunction, on the ground that the equity of the Bill had been removed by the answer in direct response to it. The Court below dismissed the Bill upon the first ground, but expressed the opinion that there was equity in the Bill, which had not been sworn off. To the first portion of his ruling the complainant excepted, as did the defendant to the last.
[1.] Had the Superior Court of Lee County jurisdiction [62]*62in this case? The complainant affirms that it had, and places the jurisdiction upon a provision of the Constitution, in the first clause of section 4,977 of the Code, in these words: “The Superior Court shall have exclusive jurisdiction in all cases respecting titles to land, which shall be tried in the County where the land lies.”
The defendant denies the jmisdiction, and rests his denial upon a provision of the Constitution contained in the last clause of the same section, and immediately following that above quoted, in these words: “And, also, in all equity causes, which shall be tried in the county, where one or more of the defendants reside, against whom substantial relief is prayed. ”
It is alleged, in the Bill, that the land, the sale of which is the matter in controversy, lies in the County of Lee. What, in intendment of the Constitution, are “ cases respecting titles to land ? ” We understand them to be, cases in which the plaintiff asserts his title to the land in question, and depends fora recoveryupon his maintenance of it; or to supply a link in the chain, wanting by reason of accident or other cause. In order to determine whether or not a plaintiff at Law or a complainant in Equity, who selects his forum upon this clause of the Constitution, has made a case of jurisdiction for the selected Court, it is necessary to examine carefully, his allegations. What then is the gravamen in this case? Is it that at the time of filing this Bill, the complainant had title to the lands, and that the defendant held possession, or committed waste, or did any other act, respecting them, without his consent, and in derogation of his title ? blot at all. On the contrary, he alleges, that on, and previous to, the 15th day of July, A. D. 1863, he had title to, and was possessed of them; that on that day, for a consideration stated, he bargained and sold them to defendant, and executed to him, in due form of law, a deed for the same; and that, at a subsequent time, he delivered to the purchaser the possession, under and by virtue of that sale. In other words, that he had voluntarily passed to the defendant [63]*63by proper legal conveyance, whatever of title thereto, previously abode in him. The allegations, put out of view all question of title in the case. They are made simply as inducement to other allegations which constitute the grievance set forth, and upon which his prayer for relief is founded. They amount, briefly stated, to this, that by reason of certain fraudulent practices of the defendant, at the time of the conveyance, and at the time he was put in possession, and since, complainant is entitled, upon principles of equity jurisprudence, to have the contract set aside, the deed can-celled and the possession of the land restored to him; and such is his prayer. Iiis case is not that the title never legally passed from him, nor that it has legally returned to him. His prayer is not that his title, under existing circumstances, may be adjudged good and valid, but that by reason of certain facts, dehors the title, the contract which divested him of it may be annulled^, and it restored.
The case, then, does not respect title to lands, but is respecting a contract in relation to them, and certain fraudulent practices, which, it is„ alleged, vitiate that contract. It follows that, the character or nature of the case does not give jurisdiction to the Superior Court of Lee County.
It also appears by the Bill, that the defendant resides not in the County of Lee, but in the County of Macon, in this State, which, under the last clause of the section quoted above, fixes the proper jurisdiction in Macon County, and of course the Superior Court of Lee county can take no furthe rcognizance of the case.
[2.] The second point, which brings under consideration the merits of the case, is to be considered without reference to the answer. It is in the nature of a general demurrer for want of equity, and must be decided upon complainant’s allegations. The answer may so far remove the equity of a Bill, as to relieve the defendant of an injunction, but the complainant has unquestionably the right to proceed, and establish his case, by aliunde proof, if he can, without going [64]*64at length into the case. I shall briefly mention certain alleged facts, which seem to call for equitable interposition.
These are, that the note representing the consideration for the land was not drawn according to the contract, but a medium of payment, not being a legal tender, and not agreed upon, was surreptitiously inserted, as expressly stipulated, and the note, thus written,, was first falsely read to an illiterate, pur-blind, old man, and then delivered and accepted in ignorance of its contents; that the defendant made his purchase to depend upon complainant’s receiving in payment, the treasury notes of the Confederate Government, and asked credit for eighteen months or more, on.on e-half of the sum; that com- ' plainant refused to give credit for any portion of it, beyond the first of the ensuing January, unless such portion were paid “ in good money, not in Confederate notesbut agreed to receive payment of the whole, in Confederate notes, if paid promptly on the first of January, thus, with- good reason (as subsequent events proved) making time, of the essence of the contract; that defendant not only agreed to make that the time of payment on the face of the note, and did so make it, but gave a personal pledge of promptness in observance’of the time; that on the first of January he failed to pay, and (complainant refusing to deliver possession) afterwards promised to pay the whole in Confederate notes, upon receiving-possession ; that complainant, having upon tlio faith of this new promise, placed him in possession, he again refused, or failed to make payment; that he never tendered payment until after the passage of an act of the Confederate Congress, which had the effect of at once reducing the value of that currency as a circulating medium, one-third, which enabled him to procure funds for the payment of complainant, at this reduced value, and made it impossible for the latter (should he receive them, as tendered, at their nomininal value) to realize the consideration for which he had bargained and sold his land; that complainant offered to receive those notes, then, at their statutory and market depreciation, which offer was rejected. If our proposition, that the [65]*65allegations make time of payment an essential part of the contract be correct, this, considered in connection with the alleged contrivances and devices to obtain possession on or near the first of January 1864, and still postpone payment until the stipulated medium became greatly depreciated, as currency, it must be conceded that there is equity in the Bill.
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By the Court.
Jenkins, J.
delivering the opinion.
Defendant, in the Court below, moved to dismiss the Bill, first, for want of jurisdiction in the Court, and, secondly, for want of equity in the Bill.
He also moved to dissolve the injunction, on the ground that the equity of the Bill had been removed by the answer in direct response to it. The Court below dismissed the Bill upon the first ground, but expressed the opinion that there was equity in the Bill, which had not been sworn off. To the first portion of his ruling the complainant excepted, as did the defendant to the last.
[1.] Had the Superior Court of Lee County jurisdiction [62]*62in this case? The complainant affirms that it had, and places the jurisdiction upon a provision of the Constitution, in the first clause of section 4,977 of the Code, in these words: “The Superior Court shall have exclusive jurisdiction in all cases respecting titles to land, which shall be tried in the County where the land lies.”
The defendant denies the jmisdiction, and rests his denial upon a provision of the Constitution contained in the last clause of the same section, and immediately following that above quoted, in these words: “And, also, in all equity causes, which shall be tried in the county, where one or more of the defendants reside, against whom substantial relief is prayed. ”
It is alleged, in the Bill, that the land, the sale of which is the matter in controversy, lies in the County of Lee. What, in intendment of the Constitution, are “ cases respecting titles to land ? ” We understand them to be, cases in which the plaintiff asserts his title to the land in question, and depends fora recoveryupon his maintenance of it; or to supply a link in the chain, wanting by reason of accident or other cause. In order to determine whether or not a plaintiff at Law or a complainant in Equity, who selects his forum upon this clause of the Constitution, has made a case of jurisdiction for the selected Court, it is necessary to examine carefully, his allegations. What then is the gravamen in this case? Is it that at the time of filing this Bill, the complainant had title to the lands, and that the defendant held possession, or committed waste, or did any other act, respecting them, without his consent, and in derogation of his title ? blot at all. On the contrary, he alleges, that on, and previous to, the 15th day of July, A. D. 1863, he had title to, and was possessed of them; that on that day, for a consideration stated, he bargained and sold them to defendant, and executed to him, in due form of law, a deed for the same; and that, at a subsequent time, he delivered to the purchaser the possession, under and by virtue of that sale. In other words, that he had voluntarily passed to the defendant [63]*63by proper legal conveyance, whatever of title thereto, previously abode in him. The allegations, put out of view all question of title in the case. They are made simply as inducement to other allegations which constitute the grievance set forth, and upon which his prayer for relief is founded. They amount, briefly stated, to this, that by reason of certain fraudulent practices of the defendant, at the time of the conveyance, and at the time he was put in possession, and since, complainant is entitled, upon principles of equity jurisprudence, to have the contract set aside, the deed can-celled and the possession of the land restored to him; and such is his prayer. Iiis case is not that the title never legally passed from him, nor that it has legally returned to him. His prayer is not that his title, under existing circumstances, may be adjudged good and valid, but that by reason of certain facts, dehors the title, the contract which divested him of it may be annulled^, and it restored.
The case, then, does not respect title to lands, but is respecting a contract in relation to them, and certain fraudulent practices, which, it is„ alleged, vitiate that contract. It follows that, the character or nature of the case does not give jurisdiction to the Superior Court of Lee County.
It also appears by the Bill, that the defendant resides not in the County of Lee, but in the County of Macon, in this State, which, under the last clause of the section quoted above, fixes the proper jurisdiction in Macon County, and of course the Superior Court of Lee county can take no furthe rcognizance of the case.
[2.] The second point, which brings under consideration the merits of the case, is to be considered without reference to the answer. It is in the nature of a general demurrer for want of equity, and must be decided upon complainant’s allegations. The answer may so far remove the equity of a Bill, as to relieve the defendant of an injunction, but the complainant has unquestionably the right to proceed, and establish his case, by aliunde proof, if he can, without going [64]*64at length into the case. I shall briefly mention certain alleged facts, which seem to call for equitable interposition.
These are, that the note representing the consideration for the land was not drawn according to the contract, but a medium of payment, not being a legal tender, and not agreed upon, was surreptitiously inserted, as expressly stipulated, and the note, thus written,, was first falsely read to an illiterate, pur-blind, old man, and then delivered and accepted in ignorance of its contents; that the defendant made his purchase to depend upon complainant’s receiving in payment, the treasury notes of the Confederate Government, and asked credit for eighteen months or more, on.on e-half of the sum; that com- ' plainant refused to give credit for any portion of it, beyond the first of the ensuing January, unless such portion were paid “ in good money, not in Confederate notesbut agreed to receive payment of the whole, in Confederate notes, if paid promptly on the first of January, thus, with- good reason (as subsequent events proved) making time, of the essence of the contract; that defendant not only agreed to make that the time of payment on the face of the note, and did so make it, but gave a personal pledge of promptness in observance’of the time; that on the first of January he failed to pay, and (complainant refusing to deliver possession) afterwards promised to pay the whole in Confederate notes, upon receiving-possession ; that complainant, having upon tlio faith of this new promise, placed him in possession, he again refused, or failed to make payment; that he never tendered payment until after the passage of an act of the Confederate Congress, which had the effect of at once reducing the value of that currency as a circulating medium, one-third, which enabled him to procure funds for the payment of complainant, at this reduced value, and made it impossible for the latter (should he receive them, as tendered, at their nomininal value) to realize the consideration for which he had bargained and sold his land; that complainant offered to receive those notes, then, at their statutory and market depreciation, which offer was rejected. If our proposition, that the [65]*65allegations make time of payment an essential part of the contract be correct, this, considered in connection with the alleged contrivances and devices to obtain possession on or near the first of January 1864, and still postpone payment until the stipulated medium became greatly depreciated, as currency, it must be conceded that there is equity in the Bill. Mow far the complainant may be able to support his allegations, or, if successful, to what relief he will be entitled, we are not now called upon to consider; we decide only that he is entitled, by his showing, to a hearing.
[3.] Did the defendant’s consider; entitle him to a dissolution of the Injunction? It denies any personal pledges, outside of the note itself, as to prompt payment at the time therein specified. It denies other allegations which go to show that time was of the essence of the contract. It denies that possession was obtained on the first of January, and payment still postponed by devices and contrivances. But it does not deny what, indeed, appears upon the face of the note, that payment was to be made on the first of January, in a currency not in itself (apart from express stipulation) a legal tender, and not based upon a specie or other intrinsi-' cally valuable foundation. It admits that full payment in this etirrency was not tendered until two months after the time of payment, nor until some two weeks after it had been depreciated one-third of its nominal value. That this medium, from its peculiar character, independently of the effect of positive legislative enactment, was eminently liable to depreciation; that it was issued and circulated from hand to hand, with anxious foreboding, under the pressure of necessity, is perfectly notorious, and hence, that an obligation to pay in it, at a specified t&me% was especially binding, is apparent. These considerations invest the case with an equity that has not been, and cannot be, sworn off. The injunction goes no.further than to restrain the defendant from selling the land and from waste, pendente lite. The possession and .ordinary use and enjoyment of it are not disturbed. A. Court of Equity has discretion, under peculiar circumstances, [66]*66to retain an injunction, even when the equity of the Bill is sworn off. — Q-a. Decisions pt. 2. 15, 8, Ga. R, 444. In this case, had the Coiirt had jurisdiction, we think the injunction might have been retained.
The judgment is affirmed.