Taylor v. Bliley

12 S.E. 210, 86 Ga. 154, 1890 Ga. LEXIS 201

Opinion

Simmons, Justice.

The facts will be found in the'official report. Under these facts, we think the trial judge erred in refusing an injunction for the reasons set out in his judgment. That judgment is based upon the idea that the title to the property described in the contract was in the defendant, and that the plaintiff, therefore, was not entitled to an injunction or the appointment of a receiver. We differ from the learned judge upon this question. Under the facts, we think that the plaintiff had sufficient interest in the property to authorize him to file the bill and have an injunction and receiver, if there was no other difficulty in the way. He had paid about half the price of the property which had been delivered to him as a partner, and the partnership had gone into operation. While Bliley may have had the legal title to the property, Taylor had such an equitable interest as would authorize him to retain it in his possession, especially when th.e notes for the purchase money which Taylor had given to Bliley for the other half had not become due. If Bliley had sold the property to Taylor individually and delivered it to him, Taylor certainly could have held it against Bliley until he had refused to pay the balance of the purchase money. As the trial judge put his judgmeut upon an erroneous construction of the contract, and did not exercise his discretion upon the merits of the case, Ave reverse' the judgment and direct that the plaintifl, if he sees proper, may apply again to the judge and have him exercise his discretion upon the merits of the case.

Judgment reversed.