Tibbits v. Miller

Opinion of the court by McAtee, J.: The petition, which is sworn to by one-of the plaintiffs, avers that on'or about June 18, 1896, the Jordans executed to Miller -and Alliger, the defendants, a note and mortgage, which this plaintiff “is informed 'and believes was given without considera Lion and for the purpose of defrauding creditors, and that he-therefore alleges the same to he a fact, on information and belief.” If this averment is true, the judgment, of course, is void, and the execution of it should be restrained. But it is contended by the defendant in error that the averment is not sufficiently made, being upon information and belief. It is true, the general rule is that to sustain an injunction the allegations of fact must be in positive and direct terms, but there are some important exceptions; one of which is,-that where the facts lie only in the knowledge of the defendant, and discovery is sought, the plaintiff- may -state that he is informed and- believes that a fact is true and therefore charges the fact to be true. It has been held that, although a bill which alleges facts on information and belief is insufficient, bur. is made the basis of preliminary injunction, it is not de-murrable, as the demurrer admits the facts alleged u pon information -and belief, and that therefore the bill should not be dismissed, the preliminary injunction having theretofore been granted. (Lee v. Clark, 49 Ga. 81;10th Ency. PI. & Pr. 931.) *681 It is, however, again contended that the allegations of the petition upon the point in question are otherwise insufficient since they dio not show in what the fraud consists, and how it has been effected, and that the allegation of the petition is, therefore, simply a conclusion of law. If this were time, it would, of course, dispose of the point. The rule is that the facts and circumstances, which constitute the fraud charged shall he set out deadly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer. But it is likewise true that, where the facts constituting the fraud are unknown to the party alleging it, a general averment will not render'the pleading insufficient, and that in such a case it is only necessary that the facts, so far as known, should be alleged. Bliss says, in his Code Pleadings, section 211, that it is not sufficient to say that the party “fraudulently procured, or fraudulently induced, or fraudulently did this or that, or that he committed or was guilty of fraud; the facts which constitute the fraud must be. stated,” and further that: “Fraud is; not a fact. It is a name given by law7 to certain facts, to certain conduct of the accused party.'” And that “the fact may be misrepresentation, deceit, specifically stated, and the term fraud is the legal epithet applied to such facts.” The petition avers that (1) the Jordans executed to Miller and Alliger, the defendants, a note and mortgage, and that (2) they were without consideration, and (3) this transaction was for the purpose of defrauding creditors, and that (á) afterwards the land described in the *682 petition was sold to plaintiffs and possession thereof given, and (5) that the sum of $1,100 was taken from plaintiffs for payment therefor, and (6) that a judgment was afterwards rendered upon the said note, and the property and possession of plaintiffs taken under execution therefrom. These allegations are sufficiently specific to constitute frauds and they could not very well be made more specifically, unless the plaintiffs could have known the secret counsels of those upon whom they charge the fraud. And we think the petition should be sustained, upon the ground that any further or more' specific facts would naturally lie in the knowledge of the defendants, and could not reasonably be expected to be in the knowledge of the plaintiffs. If these facts are true, as they are admitted to be true by the demurrer, they would entitle the plaintiffs to a judgment, and we think the cause should be reversed, which is accordingly done. Hniner, J., having presided in the court below, not sitting; all of, the other Justicies concurring.