Brown v. Wright
| Decision Date | 18 June 1828 |
| Citation | 23 Ky. 396 |
| Parties | Brown, Slater, & c. v. Wright. |
| Court | Kentucky Court of Appeals |
Principal and Surety. Rescission of Contracts. Novations.
ERROR TO THE LOGAN CIRCUIT; HENRY P. BROADNAX, JUDGE.
Mayes and Crittenden, for plaintiffs.
Pope and Monroe, for defendants.
Judgment at law against complainant.
Lilburn Wright filed his bill, to be relieved against three judgments at law, founded on three notes executed by him as surety for Robert A. Wright, Jesse T. Wright being another co-surety, to George Brown. One of these notes was assigned by Brown to H Slater, and the other two retained by Brown, and on all separate judgments were obtained against Lilburn Wright only. His equity, on which he relies for relief, may be summed up under the following heads to-wit:
That George Brown was one of several proprietors of the town of Cumberland, in Tennessee, as laid off, and the lots in which were sold out by said proprietors; and in the division of the notes of the purchasers among the proprietors, these in question fell to Brown, and each was given for the purchase of lots in said town, made by Robert A. Wright at the public sale of lots; and it was represented at the said sale by the proprietors--
Grounds relied on in the bill for injunction.
1st That shortly after the sale, the proprietors would build a bridge across Red river, which would greatly increase the value of lots in the town; and also, that they would build convenient and commodious warehouses in the town; which deluded the bidders, and lots were sold for hundreds of dollars, that were not worth as many cents:
2, That the proprietors had many secret by-bidders for the lots, and the auctioneer himself would cry bid after bid, when it was unknown whence the bid came; and in fact the bids were made by the auctioneer himself, by secret instructions from the proprietors:
3, That, as the complainant is advised, George Brown, and the remaining proprietors of the town, had not at the time of the sale a good and sufficient title to the land, on which the said town was established:
4, That said proprietors failed to give any writing evidencing the sale of lots at the time of sale, whereby the sale was void by the statute of frauds and perjuries.
He insists that the proprietors failed in performing those things, such as the bridge and warehouses, which they held out as inducements to the purchasing of lots; that the town is abandoned and is a common.
He makes the principal, Robert A. Wright, and his co-surety, as well as Brown and Slater, defendants to this bill, and advertised gainst his principal as a non-resident, and took the bill as confessed.
Parties.
Brown and Slater both answered the bill, denying the equity, and contesting the complainant's right to relief.
Brown and Slater's answer.
The court perpetuated the injunction, and gave complete relief against the whole demand.
Decree of the circuit court.
If we waive the objections against this decree of a perpetual injunction, without setting aside the contract in toto, we can not perceive on what principle the court below could have given relief to the surety, on the equity set up, without that relief being asked by the principal. The principal, it is true is made a defendant; but it is not even...
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