Latham v. Mclain

• Decision Date: 30 September 1879
• Citation: 64 Ga. 320
• Parties: Latham. v. McLain.
• Court: Georgia Supreme Court

64 Ga. 320

Latham. v. McLain.

Supreme Court of the State of Georgia

(September Term, 1879.)

Injunction. Dower. Tender. Before Judge Buchanan. Campbell county. At Chambers. September 29th, 1879.

Mrs. McLain filed her bill against Latham and the Atlanta & West Point Railroad Company, making, in brief, this case:

Her husband, lately deceased, on or about January 5, 1870, purchased from one Thompson, a lot in the town of Fairburn, with the improvements thereon, for $125.00. Thompson had never paid the railroad company for the lot. Such company owned many lots in the town of Fairburn, which it was anxious to dispose of. To facilitate the sale it appointed Cole its agent, with instructions to open a book, in which parties wishing lots might register their names, the description of the property and the price to be paid. On payment of such price the company agreed to make a deed. Thompson registered for the lot in controversy, the price named being $50.00. This was done in 1869. Thompson took possession and made valuable improvements, consisting of a livery stable worth $100.00, fencing $10.00, and also hauled logs for the purpose of erecting a house, of the value of $15.00. On the purchase by McLain, with the full knowledge and consent of the company, he took Thompson's place. He went into possession on or about January 5, 1870, and died on May 20th, following. Since his death, the lot and improvements have been set apart to complainant as a part of her dower, and the return of the commissioners has been made the judgment of the court. Her *husband, during his life, made a continuing tender of the purchase money to the company, but by neglect of the latter it failed to make a deed. Since his death complainant has made a continuing tender to the company and demanded a deed, but it declines to accept the money or to execute the deed, because Thompson has notified it that he claims the title. On July 31, 1874, the company executed a quit-claim deed to the lot and improvements to Thompson, and on the same day Thompson conveyed to Latham. The latter purchased with full notice of the right of her deceased husband and of her claim. Yet he has commenced his action for the lot and mesne profits against complainant, returnable to the Feb-ruary term, 1877, of Campbell superior court. This suit is unjust and vexatious, and should be enjoined. The deed made by the company to Thompson on July 31, 1874, is a cloud upon the title of the estate of her deceased husband and upon her title to her dower, and ought to be delivered up to be canceled. Thompson is insolvent. Prays that complainant\'s title may be established in accordance with the judgment of the court setting apart her dower; that Latham may be decreed to have no right to said lot; that the deed made by the company be ordered canceled, etc., and the...