Morrison v. Colquitt County
| Decision Date | 14 December 1932 |
| Docket Number | No. 9107.,9107. |
| Court | Georgia Supreme Court |
| Parties | MORRISON et al. v. COLQUITT COUNTY et al. |
Rehearing Denied Jan. 13, 1933.
1. A court of equity will not relieve a vendor of land from his own negligence in not ascertaining facts which he could have ascertained by diligence, the vendee using no artifice or fraudulent scheme in order to prevent the vendor from ascertaining facts which might have prevented him from executing the deed sought to be canceled on account of the alleged fraud on the part of the vendee.
2. The court did not err in sustaining the demurrer and dismissing the petition.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Equitable petition by R. M. Morrison and another against Colquitt County and others. General demurrer to the petition was sustained, and plaintiffs bring error.
Affirmed.
H. H. Whelchel and L. L. Moore, both of Moultrie, for plaintiffs in error.
P. Q. Bryan, of Moultrie, for defendants in error.
R. M. Morrison and Ella Bell Carlton brought their equitable petition against the members of the board of commissioners of Colquitt county, the State Highway Board of Georgia, and others, to restrain the defendants from entering on certain described land for the purpose of grading a road, and to cancel a deed to the right of way made by the petitioners, on the ground that the deed was procured by fraud and misrepresentations made by the agent of the defendants, to the effect that all parties along the right of way for the proposed road had agreed to donate the right of way through their lands, except one or two parties, who were merely being delayed in making deeds because of certain minor preliminaries. It has developed, since the deed was made by the plaintiffs to the defendants (which deed was executed on a named consideration of $1 and the benefits to be derived from the construction of a paved highway through their property), that the representations made by the agent that others were making deeds without consideration were false, and that the county was paying for the land secured as much as $75 per acre, one party being paid $325, another over $2,000, and that several parties had refused to deed their property and condemnation proceedings were instituted.
The defendants demurred on the ground that the petition does not set out a cause for action; that petitioner has an adequate remedy at law; that there is no allegation that either of the defendants is insolvent; and the petition shows on its face that the damages are not irreparable. The defendants also filed an answer, in which it is specifically averred that all rights of way on the road project have been secured; that the plaintiffs are not entitled to any compensation; that all fences have been moved back on plaintiffs' land to the edge of the 100-foot right of way; and that all of the land described in the right of way deed is in the public road outside of plaintiffs' property.and fences and is in possession of the defendants.
On the hearing, the evidence with reference to false representations having been made in order to secure the deed from the plaintiffs was conflicting.
The trial judge ordered that the interlocutory injunction theretofore granted be dissolved, and that the general demurrer be sustained. To this judgment the plaintiffs excepted.
Did the petition in the present case set out an equitable cause of action? If it did not, the court was correct in sustainingthe demurrer and in dismissing it, and all that transpired subsequently was nugatory. It is alleged in the petition that the defendants perpetrated a fraud upon the plaintiffs in procuring the deed to the right of way in controversy, and it was prayed that the deed be set aside and canceled. It appears from the petition that the defendants desired a right of way through the lands of the plaintiffs, in order to lay out, grade, and pave a highway for the...
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