Edwards v. Banksmith

• Decision Date: 31 December 1866
• Parties: J. W. B. EDWARDS, plaintiff in error. v. ELLISON BANKSMITH and JAMES H. MULFORD, defendants in error.
• Court: Georgia Supreme Court

35 Ga. 213

J. W. B. EDWARDS, plaintiff in error. v. ELLISON BANKSMITH and JAMES H. MULFORD, defendants in error.

Supreme Court of the State of Georgia

(Milledgeville, December Term, 1866.)

Motion to Dissolve Injunction. Decided by Judge Irwin. At Chambers. October, 1866.

This was a bill filed by the plaintiff in error against the defendants in error, to set aside as fraudulent, a conveyance of certain lands lying in Cobb county, made by the former to Bank-smith, one of the. latter, who purchased for and on account of Mulford, his co-defendant. The fraud alleged was, that the defendants knew the land contained a valuable gold mine, and the complainant had no such knowledge, and that Banksmith, on being asked by complainant, during the negotiations, what the lands were wanted for, and whether they did not have gold upon them, replied that they were wanted for farming purposes, etc., and that if they contained gold he did not know it. The bill charged that Banksmith resided beyond the limits of this State, and that both defendants, (so far as complainant knew) were insolvent and unable to respond in damages. It prayed for an injunction *to restrain the defendants from selling the lands and from working them as a mine; and the injunction was granted.

The answers denied that any gold had, so far as the defendants knew, been found on the lands either before or after the purchase. Mulford admitted, however, that the lands lay in or near what was considered the gold range or formation, between Lumpkin county, Ga., and Randolph county, Ala., and that on that account he caused the purchase to be made, acting altogether on a calculation of chances.

On the coming in of the answers, a motion was made to dissolve the injunction, when the complainant, in order to show the existence of a mine on the premises, submitted the affidavits of one Grantham and one Asbury:

Grantham deposed that, from the direction of a gold vein which he had opened on adjoining land, and his knowledge as a miner, he believed said vein ran through the lands in question, and was a valuable vein. Also that he had panned for gold on these lands and found from twenty-five to thirty particles of gold, to the panfull (not over one gallon) of earth.

Asbury deposed that he had been a practical miner for twenty years; that in company with Grantham, and after the latter had made an examination alone, he made a surface examination of these lands for gold; and from the gold he thus found, and the location...