Error v. Error

• Decision Date: 31 August 1855
• Docket Number: No. 95.,95.
• Citation: 18 Ga. 668
• Parties: John A. Lavender et al. plaintiffs in error. vs. William J. Thomas et al. defendants in error.
• Court: Georgia Supreme Court

18 Ga. 668

John A. Lavender et al. plaintiffs in error. vs. William J. Thomas et al. defendants in error.

No. 95.

Supreme Court of the State of Georgia

AUGUST TERM, 1855.

In Equity, in Houston Superior Court. Tried before Judge Powers, May Term, 1855.

The bill alleges—

1. That, on the 17th Feb. 1852, Wm. J. Thomas and John A. Lavender purchased, jointly, of Reuben H. Slappey and Littleberry Mulkey, five acres of land in the 8th district, a part of No. 92, except the right of way for rail road,

2. A steam mill was then in operation on the five acres; price $2.700 in cash; but taken by Slappey; a note held by Lavender, on A. B. Dulin due 1st Jan. 1853, for $1.500, without any words of negotiability.

3. The note was endorsed by Thomas and Lavender, as guarantor, though it was to be Lavender's part of the purchase money.

4. Thomas and Lavender then executed joint notes to Slappey and Mulkey, for $1,370 93, due 1st Jan. 1853, including interest on payment for mill. Thomas signed first, individually, and then Lavender.

5. That for this consideration Slappey and Mulkey executed their deed, with certain timber privileges to Thomas and Lavender.

6. That immediately after said purchase, and before work with the mill, Thomas and Lavender took in Daniel W. Visscher as an equal partner.

7. That in five or six weeks after the first purchase, Thomas bought out the entire interest of Lavender, but took no deed from him—Thomas paying two hundred dollars in lumber, and assuming the payment of the $1.500 note of Dulin, and the $1.370 93 note, made by Thomas and Lavender to Slappey and Mulkey; Lavender, in the mean time, abandoning all control of the mill.

8. That during all this time, the title papers to the property remained in the possession of Thomas.

9. That after the purchase of Lavender's interest, Thomas Lad sole possession and control of the lot and mill, with the timber privileges; and made a contract with the rail road company to furnish stringers and cross-ties from Fort Valley to Flint River, ten miles; worth $6 or $8000 gross.

10. That Thomas then purchased of F. II. Cheever, all the saw timber on lot No. 69, and west half of lot No. 59, in the 8th district, and took a deed therefor.

11. That Thomas also purchased of Cheever, timber of the same kind on 200 other acres of land, the deed to which has been lost or mislaid.

12. That the purchase from Lavender, and of the timber from others, was for the joint use and benefit of Thomas and Visscher, who remained in quiet and excluisve possession, with the consent of Lavender, until Sept. 1, 1852, when Thomas, for himself and Visscher, re-sold to Lavender all his former interest in the five acres, except the right of way. The timber and grist-mill, which had been since added, were included in the re-sale to Lavender, upon the understanding between Thomas and Lavender, as follows:

First. That Lavender was to protect and save, harmless, Thomas on the Dulin note guaranty, and on the joint note to Slappey and Mulkey; both given for the five acre lot and mill.

Second. That Lavender was to have the contract with the rail road for stringers and ties.

Third. That Thomas was to continue to hold the titles to the property, as an equitable surety for the payment, by Lavender, of the two notes for $1.500 and $1.370 93.

Fourth. That when Lavender paid off these two large notes, and also $450, which Thomas had paid for the gristmill and timber privileges, then Thomas was to convey to Lavender the five acres, the steam saw-mill, the grist-mill, and all the timber privileges.

13. That immediately after this bargain with Lavender, he took possession of all the property and used it, realizing on the rail road contract $3.000 or other large sum, besides $1.000 worth of lumber sold to other persons.

14. That Lavender continued to possess and use the mills and other property as his own, until May or June, 1853, when both mills were burned down from the carelessness of Lavender, his agents or servants.

15. That the burning of the mills changed the situation of the premises, and rendered the balance of the property of but little value.

16. That other dealings had taken place between Thomas and Lavender, when, on January 25, 1858, Lavender executed his note to Thomas for Six Hundred and Fifty Dollars, due one day after date.

17. That Thomas had tendered to Lavender, a conveyance for all the mill property and timber privileges, if Lavender would take up or discharge Thomas from the notes for $1.500, and $1.370 93, which he, Lavender, has wholly failed to do.

18. That, by process of law, and for his own safety, Thomas has been compelled to pay off the $1.370 93note.

19. That Thomas and Visscher are ready and willing, and offer to convey said 5 acres and the timber, upon Lavender's re-imbursing the payments on said notes.

20. That after the burning of the mills, Lavender recognized and claimed the land, mills and timber.

21. That in June, 1853, he was about to remove himself, family and property, beyond the State of Georgia, when Thomas, having previously paid off both the large notes, sued out bail process against Lavender on the $1.500 note, and also on other demands, under which process Lavender was committed to Crawford jail.

22. That about the time of said bail proceeding, Thomas sued out attachments against the property of Lavender, which were dismissed for irregularity.

23. That previous to suing out said bail process and attachment, Lavender had caused a considerable portion of property that he claimed, and had in possession, to be removed to Texas, so that when said process issued, he had no property in Georgia, within the knowledge of Thomas, except the 5 acres of land, the remains of the mill after burning, one negro man, the mill-carts, wagons, &c. horse and buggy, of not much value, and a large two-story house, and the lots thereto attached, in Fort Valley, whereon Thomas now resides.

24. That Thomas, by said attachment, pursued and brought back a negro man, Joe, as the property of Lavender.

25. That two fi. fas. from Houston Superior Court, April Term, 1853, in favor of R. H. Slappey vs. Lavender, were levied on the house and lot in Fort Valley, which was sold under the levy, on the first Tuesday in November, 1853, by the Sheriff, for $1.580; and after Slappey's fi.fas. were paid, or partially paid, James A. Miller's note was taken, he being the purchaser of the house and lot, and the money impounded by order of the Court.

26. That while Lavender was in jail for debt, he " fraudulently, and with intent to cheat, delay and hinder, and avoid the payment of Thomas' debt, and for no other purpose whatsoever, " made to Peter Hindsman eighty odd notes, within the jurisdiction of a Justice of the Peace; and also executed to Hindsman a mortgage on said house and lot in Fort Valley, to secure the payment of said smaller notes.

27. That Lavender caused himself to be sued in a Justice's Court of Crawford County upon said small notes, and judgments rendered against him for between twenty-three and twenty-five hundred dollars.

28. That while so in prison, Lavender executed to Harrison J. Sargeant, a mortgage upon ox-carts, mill-carts, and a large quantity of sawed rail road lumber and other articles.

29. That the note on J. A. Miller for $1.580, is a fund in Court, subject to the bona fide creditors of Lavender, of which Thomas is one.

30. That the debt to Hindsman is not bona fide, real or substantial, but was made or pretended to be created after the arrest of Lavender and while he was in prison, for the " express purpose of covering up, concealing, cloaking and screening the said house and lot in Fort Valley" from the debt of Thomas, for which Lavender was imprisoned.

31. That if the debt to Hindsman ever had any real bona fide existence, it was in a large note or notes above the jurisdiction of a Justice of the Peace; and that after the imprisonment of Lavender, he and Hindsman, " for the express ob-ject, purpose and deliberate intent to cover up and conceal all the property of the said Lavender from orator Thomas\' claim, combined together to cheat and defraud orator Thomas, and for that purpose split up and severed the said large note or notes, " and then gave the mortgage.

32. That combining to defraud Thomas, suits have been brought, judgments and executions obtained on the small notes, which no doubt will pretend to claim the fund in Court from the sale of the house and lot.

33. That while in prison, Lavender executed small notes to A. D. Kendrick for a previously existing debt, for a sum from $80 to $140, which notes, given to create a fraudulent advantage to Kendrick, to the prejudice of Thomas, have been sued to judgment.

34. That when Lavender was preparing to abscond, sundry attachments in a Justice's Court were levied on articles of property which had before been mortgaged for a pretended debt to H. G. Sargeant, which property was brought to sale by a Constable, in Sept. 1853, when Sargeant attended with a mortgage fi. fa. issued that morning, and gave notice to bidders that they would buy a law-suit. By this threat he purchased in most of the articles, including some 50 or 60,-000 feet of rail road lumber, stringers and cross-ties, at the greatly inadequate price of 50 cents per hundred, when the same was worth from 87 ¹/₂ cents to $1 per hundred feet, saying that he was buying said articles of property for the benefit of Lavender.

35. That Lavender afterwards, by the consent of Sargeant, disposed of said lumber and other property. The mortgage fi. fa. was for between $1000 and $1200, foreclosed in the Inferior Court of Crawford County.

36. That Samuel F. Dickinson obtained judgment against Lavender at July Term, 1853, of Houston Inferior Court, for between $700 and $900. His fi. fa. was levied on a negro man, Joe, which Thomas had brought back, on Lavender's flight beyond Flint river, under his attachment; and thenegro has been sold for $800, under Dickinson\'s fi. fa. and the...