Perkins v. Dyer

• Decision Date: 28 February 1849
• Docket Number: No. 52.,52.
• Citation: 6 Ga. 401
• Parties: John C. Perkins and others, plaintiffs in error. vs. Nicholas Dyer, defendant.
• Court: Georgia Supreme Court

6 Ga. 401

John C. Perkins and others, plaintiffs in error. vs. Nicholas Dyer, defendant.

No. 52.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1849.

In Equity, in Troup Superior Court. Application to Judge Hill for an injunction.

This was a bill for discovery and injunction, in favor of the plain-tiffs in error against the defendant; presented to Judge Hill for his sanction.

The bill alleges, that Nicholas Dyer, as the administrator of William Backus, deceased, was indebted to said estate the sum of $1,400, and that to secure the payment of the said balance in his hands executed to Sarah Backus, as natural guardian of the orphans of William Backus, a mortgage on a lot of land in Coweta county; that subsequent to the execution of said mortgage, a judgment was rendered against Dyer, in Coweta Superior Court, in favor of Sandford H. Hubbard, upon which execution was issued and levied on said lot of land, and on the 1st Tuesday in Feburary, 1844, the same was sold, when the complainants became the purchasers; that on the day and at the sale of said land, Nicholas Dyer and Sarah Backus caused to be exhibited to the public and to the complainants, a statement, in writting, of the settlement and satisfaction of the said balance in the hands of Dyer, as administrator, for the security of which the mortgage was executed, and an extinguishment of the lien on said land; that the paper was executed for the purpose of being exhibited at the sale, to induce purchasers to buy who would otherwise have been deterred from so doing in consequence of the mortgage, and that complainants were induced to purchase in consequence of the said paper or receipt; that Joseph Attaway was afterwards appointed guardian of the minors of William Backus, deceased, and foreclosed the mortgage, and has levied the fi fa. issued on foreclosure thereof on the said mortgage premises, which has been claimed by plaintiffs in error.

The bill farther charges collusion and fraud between Dyer, Sarah Backus and one Thomas Bonner, to defraud the complainants, or whoever might purchase the land; that Bonner had executed a deed to said land to Dyer, which had not been recorded; that at the time of the executing the release of the mortgage lien from Sarah Backus to Bonner, that was read and exhibited on the day of sale, it was understood and agreed by and between them, that Dyer was to cancel the deed of Bonner to himself, and procure Bonner secretly to execute a deed to Sarah Backus, and that the land was to go to sale under the Hubbard fi. fa. and after satisfying it, the balance of the proceeds of the sale were to be received by Dyer.

The bill further charges, that complainants are unable to makeproof of these facts charged, without...