Emanuel Isaacs Et Ux v. Tinley

• Decision Date: 31 January 1877
• Citation: 58 Ga. 457
• Parties: EmanuEL Isaacs et ux., plaintiffs in err0r. v. JamES J. TinlEy, executor, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 457

EmanuEL Isaacs et ux., plaintiffs in err0r. v. JamES J. TinlEy, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Equity. Demurrer. Constitutional Law. Pleadings. Judgments. Before Judge Hill. Bibb Superior Court. October Tern, 1876.

Reported in the opinion.

Lyon & Nisbet; Bacon & Rutherford; G. W. Gustin, for plaintiffs in error.

Lanier & Anderson, Hill & Harris, for defendant.

Jackson, Judge.

This was an application for an injunction; the injunction was refused, and the complainant, being dissatisfied, brings the case before us.

Isaacs borrowed three thousand dollars from James Tinley, deceased, and, to secure the payment thereof, Tinley took a deed from Isaacs to a boarding-house in Macon, Isaacs' wife assenting, under the act of 1871—Code, § 1969. James Tinley died, and his executor went into equity and procured a decree against Isaacs and wife, to have the property sold and the debt paid, and the balance of the money turned over *to Isaacs, alleging in the bill that the property was worth much more than $3,000, and hence he had not brought ejectment. Neither Isaacs nor his wife answered or pleaded to the bill, but they were served regularly, and the jury found a verdict, and the decree was made thereon. Execution was issued upon this decree, and levied upon the house and lot. Thereupon Isaacs and wife brought this bill, and prayed to enjoin the execution.

This bill alleges the foregoing facts, and says that the court of equity had no jurisdiction to decree the sale of this property— that the deed was a mortgage, in fact, and that it should have been foreclosed at law, and that there was no issuable fact pleaded on oath, and, therefore, the verdict was illegal, and that this illegal proceeding deprives complainants of their right of homestead, and defeats other and superior liens of other creditors of Isaacs. It prays for a new trial, and an injunction until the trial, which the chancellor refused. This refusal is the error assigned.

1. The first question is, did the court of equity have jurisdiction to decree on the bill to sell the property? The only ground of demurrer to the bill would have been, that the common-law remedy was complete, conceding that the deed was a mortgage; but this court has ruled that defendants must demur on this ground at the first term; that it is too late to move to dismiss on the trial even, and especially too late after decree. And there is sound sense in the ruling, because the defendant ought not to be permitted to delay forcing the complainant on the right side of the court—the side that had clear jurisdiction—longer than at the term when he should file his demurrer, and this is the first term— Code, § 4191; 27 Ga., 233, 352.

Even if the paper had been a mortgage merely, and had not operated to pass the title into Tinley, we should hold that thedefendants in...