Bagwell v. Bagwell

• Citation: 72 Ga. 92
• Parties: Bagwell . vs. Bagwell.
• Decision Date: 30 September 1883
• Court: Supreme Court of Georgia

72 Ga. 92

Bagwell . vs. Bagwell.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

Specific Performance. Partnership. Debtor and Creditor. Equity. Before Judge Hutchins. Franklin Superior Court, March Term, 1883.

J. M. C. Bagwell filed his bill against A. G. Bagwell, alleging, in brief, as follows: In 1873, J. Madison Bagwell and complainant were merchants in the town of Carnesville, Georgia, under the firm name of J. M. Bagwell & Son. On April 19, 1873, they borrowed fromdefendant $260.00, and gave therefor their note, bearing ten per cent interest. On March 8, 1875, J. Madison Bagwell died testate, leaving complainant as his executor. As such, complainant sold the realty of the deceased, on the first Tuesday in January, 1876. Defendant caused the store-room in Carnesville to be bid in for him for $275.00. Some days after the sale, defendant went to complainant and informed him that he (defendant) had no use for the store-room, and was unable to pay lor it at that time, and offered to let complainant take it from him. Complainant tendered him a deed, but defendant declined to take it for awhile, saying that complainant could hold, it, but he subsequently took it. A contract was made between complainant and defendant, to the effect that complainant should pay oft the firm note due to defendant, assume the bid of defendant for the house, and that the defendant should thereupon make him a deed. This agreement was very advantageous to defendant, because the firm and both of its members were insolvent; and in the regular course of administration, the individual assets of the deceased member would be first applied to his individual debts, leaving the firm debt due to defendant unpaid. On the day the contract was made, complainant paid defendant $173.00, and on July 13, 1878, he paid $25.00 more. Immediately after the contract, complainant took possession of the property, paid taxes and expenses of repairs, and held possession until January 13, 1883. At the time of the contract, property in Carnesville was very much depreciated in value, and complainant would not have remained there at all but for having bought this lot, and would not have rented it at any price. But property has now advanced in valuation, and defendant claims the title to this house, and unless a specific performance is decreed, can eject complainant and hold him liable for rent. He has tendered defendant the balance due on the note, and demanded a deed, but defendant refuses to com-ply with the contract. The object of the bill was to com pel a specific performance.

Defendant demurred to the bill for want of equity, because there was a complete remedy at law, and because the contract set up in the bill was illegal and contrary to public policy.

The court sustained the demurrer and dismissed the bill. Complainant excepted.

J. T. Dortoh; W. R. Little; S. P. Thurmond, for plaintiff in error.

A. S. Erwin; B. F. Camp, for defendant.

Hall, Justice.

Any fact showing that a contract is unfair, or unjust, or against good conscience, will justify a court of equity in refusing to decree its specific performance. Code, §3190. The exercise of the jurisdiction of a court of equity to decree a specific performance, or the recission of a contract, is not a matter of right in either party, but is a matter of sound and reasonable discretion in the court, which governs itself, as far as it may, by general rules and principles, but, at the same time, which withholds or grants relief according to the...