Calhoun v. Tullass

Walker, J. [1.] Complainants contracted to take up tlie liens which were upon the land of Nichols, provided said liens should not exceed $35,000 ; and, in consideration of such obligation, received a warranty deed to a valuable settlement of land. In compliance with their contract, they paid some $18,000, or perhaps $19,000, leaving some $9,000 still, to which said land is subject. They now ask a Court of Equity to enjoin the persons holding these outstanding liens from proceeding to enforce them. In other words, complainants take a deed to the land, pay nothing to the owner, but obligate themselves to pay these creditors, fail to do so, and ask that the creditors be restrained from making their money out of the land — the very money complainants promised to pay, in consideration of a conveyance of the land to them To state the case is to decide it, it seems to me. Complainants failed to comply with their contract, and asked to be relieved irorn the consequences of such failure; this is the whole ease. It is needless to say a Court of Equity will do no such thing. [2.] But the complainants say they have mortgages purchased from the Messrs. McEarland which were not assigned to them, and that it is necessary to go into Equity to foreclose them, because the mortgagees refuse the use of their names. Without expressing any opinion as to the effect of the complainants foreclosing mortgages against their own land, and to which, when they comply with their contract, they will have a clear and unincumbered title, we will say they have'a right to use the names of the mortgagees for their use in a proceeding to foreclose. If the mortgagees object to such use of their names, the complainants may indemnify them against costs, &c., and use their names, even 124 against their consent, in favor of the ends of justice, as has frequently been done in actions of ejectment. Fain vs. Garthright, 5 Ga. Rep. 6. English vs. Register, 7 Ga. R. 387. There being no equity in this hill, the Court erred in overruling the demurrer. Judgment reversed.