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Calhoun vs. Tulla ss.

amounted to $1,515 95, and the mortgages to $15,707 91. The mortgages, without being entered, satisfied or marked paid, were delivered over to the vendees, and are still held by them; the understanding with the mortgagees at the time the latter received the money upon them being that said mortgages were to remain open in the hands of the vendees. as their property, and for their protection in the event it. became necessary. The mortgagees would then have executed to the said vendees a written assignment or transfer of the mortgages, but by mistake it was omitted, and they now decline to do so.

The vendees placed in the hands of an agent $1,771 37, to take up two executions and a note against the vendor, one of the executions being that in favor of Paris, one of the defendants in the bill, which money the parties refused to receive, and it was lost.

Ten executions against the vendor, older than the mortgages, have been levied upon one of the lots of land embraced in the purchase, worth to the settlement $1,500.00, and it has been sold under the levy, and is a total loss to the vendees. There are yet outstanding executions older than the mortgages to the amount of $3,500 00, which will have. to be paid out of the land, as the vendor has no other property subject to them. The land is not worth more in currency than $10,000 00-less than enough to pay the mortgages and, after paying the older executions, will not sell for half enough to satisfy them.

Calhoun's execution is for over $4,000 00. Paris' is for $1,500 00, or near that amount. Both of them are younger than the mortgages, but older than the purchase of the land by complainants. They have both been levied on the land, and complainants have interposed claims which are now pending in Catoosa Superior Court.

Complainants allege that they cannot foreclose the mortgages at law, because they have not been assigned or transferred. Also, that, under existing circumstances, there being mortgages and older and younger judgments, with the right

Calhoun vs. Tullass.

of the complainants to have the mortgages foreclosed unsettled, the rights of the several parties claiming the proceeds of a sale of the land uncertain, and the complainants, therefore, unable to determine how or whether to bid at all for the land. Persons interested in causing it to bring as much as possible would, at any sale of the same under these younger executions, be embarrassed, if not deterred from bidding, so that the land would not sell for its full value, and the said Nichols and his creditors would almost necessarily be injured.

The bill prayed:

1. For a foreclosure of the mortgages and for a cancellation of the deed from Nichols to the complainants; or, that the deed stand, and that the land be sold free from doubts, clouds, and suspicion as to the title, and the proceeds distributed to the mortgagees and judgments according to law.

2. For an assignment of the mortgages by the mortgagees, or for foreclosure without such assignment.

3. For an injunction restraining Calhoun and Paris from selling the land under their executions, and from pressing the claim cases to a trial.

4. For general relief.

Discovery from the defendants, or any of them, was expressly waived.

The defendants demurred to the bill on various grounds: 1. For multifariousness.

2. For the improper joinder of Calhoun and Paris as de fendants to the bill.

3. For want of equity.

4. For want of equity as to Calhoun and Paris; and be cause the subject matter of the bill, as to them, was already before a Court of law, and the remedy at law complete.

5. For want of jurisdiction, as to Calhoun and Paris. The Court overruled the demurrer, and that is the error complained of.

Cannon vs. Tullass.

CALHOUN and BROWN, for plaintiffs in error.

AKIN, for defendant.

WALKER, J.

[1.] Complainants contracted to take up the liens which were upon the land of Nichols, provided said liens should not exceed $35,000; and, in consideration of such obligation, received a warranty deed to a valuable settlement of land. In compliance with their contract, they paid some $18,000, or perhaps $19,000, leaving some $9,000 still, to which said land is subject. They now ask a Court of Equity to enjoin the persons holding these outstanding liens from proceeding to enforce them. In other words, complainants take a deed to the land, pay nothing to the owner, but obligate themselves to pay these creditors, fail to do so, and ask that the creditors be restrained from making their money out of the land-the very money complainants promised to pay, in consideration of a conveyance of the land to them To state the case is to decide it, it seems to me. Complainants failed to comply with their contract, and asked to be relieved from the consequences of such failure; this is the whole case. It is needless to say a Court of Equity will do no such thing.

names.

[2.] But the complainants say they have mortgages purchased from the Messrs. McFarland which were not assigned to them, and that it is necessary to go into Equity to foreclose them, because the mortgagees refuse the use of their Without expressing any opinion as to the effect of the complainants foreclosing mortgages against their own land, and to which, when they comply with their contract, they will have a clear and unincumbered title, we will say they have a right to use the names of the mortgagees for their use in a proceeding to foreclose. If the mortgagees object to such use of their names, the complainants may indemnify them against costs, &c., and use their names, even

Taylor, et. al. vs. Flint, et. al.

against their consent, in favor of the ends of justice, as has frequently been done in actions of ejectment. Fain vs. Garthright, 5 Ga. Rep. 6. English vs. Register, 7 Ga. R. 387. There being no equity in this bill, the Court erred in overruling the demurrer.

Judgment reversed.

WILLIAM TAYLOR, in right of his wife, and as Guardian of ADOLPHUS T., JAMES A. and MARIA MOUGHON; and JOSEPH A. DAVIS, in right of his wife, plaintiffs in error, vs. THOMAS J. FLINT, in right of his wife, and as Guardian of INDIA H. MOUGHON; and JOSEPH A. DAVIS, Administrator of THOMAS MOUGHON, deceased, defendants in error.

[1.] The errors complained of, must be plainly and distinctly set forth in the Bill of Exceptions.

[2] When the family of a decedent embraces two sets of children, each set is entitled to an allowance of furniture, or to an equivalent in lien thereof.

[8.] The Constitutionality of a law is not to be called in question by a Court unless absolutely necessary.

[4.] The Ordinance of 1865, for adjusting contracts according to equity, construed; and its constitutionality affirmed.

Award by Judge CLARK. At Chambers. August, 1866.

Mrs. Taylor and Mrs. Davis, together with the three minors of which Taylor is guardian, are the children of Thomas Monghon by his first marriage. Flint married the widow of Thomas Moughon, and is guardian of her child, the offspring of Monghon's second marriage.

After Moughon's death, the appraisers appointed by the Ordinary to set apart a years support, etc., to his family, assigned to the minors by the first marriage, among other things, ten thousand five hundred and forty-three dollars in

Taylor, et. al. vs. Flint, et. al.

Confederate Treasury notes, "as an offset to the furnitu e set apart to Mrs. Moughon and child."

In March, 1865, and afterwards, the widow, now Mrs. Flint, bought of the administrator, property to the amount of $27.897, in Confederate Treasury notes, with the understanding that such sun should be receipted for by her as a part of her distributive share of her deceased husband's estate.

In August, 1866, all the parties to this writ of error submitted to Judge Clark, with leave to except to his decision, divers matters touching the estate of Thomas Moughon; among them the following questions:

What amount, in present currency, shall be paid by the administrator to the guardian of the three minors, in lieu of such portion of years support as has not been consumed by them, or appropriated to their use?

What amount, in present currency, shall be accounted for by Thomas J. Flint, in right of his wife, in lieu of said sum of $27.897, in Confederate currency 7?

In the award rendered by Judge Clark, he held, on the first question, that the appraisers were not authorized by law to allow the sum given as a set-off to the furniture set apart to the widow and her child, and he, therefore, disallowed that item altogether.

The second question he disposed of by reducing the $27.897, in Confederate currency, to its value in gold at the time the property was purchased, holding that the Ordinance of the late Convention, in so far as it permits a valuation of property at any time other than the time of the contract, is unconstitutional, because the legal presumption is, that parties enter into a contract with reference to the value of property at the time when the contract is made, and not at a former or subsequent period.

IRVIN, for plaintiffs in error.

HINES & HOBBS, for defendants.

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