Mitchell v. Wife

• Decision Date: 31 January 1872
• Citation: 45 Ga. 162
• Parties: ISAAC G. MITCHELL, plaintiff in error. v. JESSE M. BUTT AND WIFE, defendants in error.
• Court: Georgia Supreme Court

45 Ga. 162

ISAAC G. MITCHELL, plaintiff in error. v. JESSE M. BUTT AND WIFE, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

Vendor and purchaser. Estoppel. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.

Mitchell's bill against Butt and his wife made this case: In 1862, Butt and his wife had purchased of one Rogers certain described land, he agreeing to make them a title to the same when they paid the price of it to him. They had paid no part of the price, and could not. They asked Mitchell to pay Rogers the price for them, agreeing that if he would the land should be bound to him till his money was repaid. Accordingly, Mitchell paid Rogers the price, $900, Rogers made a title to Butt and his wife, and they gave Mitchell this paper:

"Atlanta, Georgia, Nov., 14th, 1862.

"Two years after date, with interest from date, we promise to pay to J. G. Mitchell the sum of $900 for the south half of land lot number one, etc., (fully describing the land.) Witness our hands and seals, " and they signed and sealed the same.

Now Butt and wife offer to sell said land, saying that their title to it is clear, and that there is no lien or encumbrance upon the same.

He prayed that they be enjoined from selling, lest an innocent purchaser, without notice of said paper, *might defeat his lien, and that the land be sold to pay said $900 and interest. This bill was dismissed for want of equity. That is assigned as error.

D. F. Hammond, for plaintiff in error. Rogers would have had a lien for the purchase-money, and Mitchell is subrogated to his rights in equity: 2 Bouv. L. D., 553; 6 Watts and S. R., 190; 2 Bonv. Inst., 1413; Revised Code, sections 2150, 2151; 37 Ga. R., 221; 34th, 387. Vendor's lieu abolished in 1863. The contract sustains the bill: Revised Code, sections 3026, 1945.

J. M. Calhoun & Son, for defendants. Mitchell was not vendor: 9 Ga. R., 90. The paper is what it was intended to be: 13 Ga. R., 94, and is simply a promise to repay borrowed money.

McCAY, Judge.

It would be a gross fraud to permit these parties to repudiate their solemn agreement, under their hands and seals, to the effect that, in the payment of this money for their benefit, the complainant should stand in the place of the original vendor of the land. Under the agreement they got the money, the vendor made them a deed, and they solemnly agreed that the money they owed the complainant was the purchase-money of the land. Whether this be...