Kendall v. Dow

Warner, Chief Justice. This was a bill filed by the complainant as the sole heir-at-law of John M. Dow, against the defendant, praying for an injunction to restrain the sale of twenty-six lots of land in the county of Mitchell, which had been levied on as the property of Cheever to satisfy a judgment obtained in favor of Kendall vs. Cheever. After hearing the parties on a rule to show cause the Court granted the injunction prayed for in complainant’s bill; whereupon the defendant excepted. It appears from the record in this case, that prior to the 11th day of August, 1870, that Kendall, the defendant, had obtained a common law judgment against the administrator of William W. Cheever, which bound the property of said Cheever, for the payment thereof, including the lands now levied on in the county of Mitchell, which lands had been conveyed to Dow, the complainant’s intestate, by William W. Cheever, in his lifetime, for a valuable consideration. On the 11th day of August, 1870, Messrs. Hines & Hobbs, the attor [614] neys of John M. Dow et al., and Messrs. Nason & Davis, the attorneys of Kendall, entered into a written agreement for the settlement and adjustment of the claim» of the respective parties represented by them as attorneys at law in the case stated. The preamble to the agreement recites, after stating the case of John M. Kendall vs. William W. Cheever, complaint in Dougherty Superior Court, that whereas, the plaintiff in the above stated case heretofore, to-wit: at the......Term, 185..., of the Superior Court of Dougherty county, obtained a judgment at common law against said W. W. Cheever, on which judgment an appeal was entered by said defendant, which is still pending in said Court, and whereas, the lien of said common law judgment is supposed to bind certain property hereinafter set forth.” The agreement then provides that in consideration of the payment of $1,000, that the plaintiff may take a verdict for the payment of the last verdict obtained in said cause or dismiss the appeal, as plaintiff’s counsel may see fit. In consideration of the payment of $1,000, to be raised and paid as stipulated in the agreement to said plaintiff’s attorneys, the said lien of said judgment shall be forever released and satisfied on the following property, to-wdt: all that property conveyed by W. W. Cheever to Thomas S. Metcalf by deed which is of record in the Clerk’s office in Dougherty Superior Court, city lots forty-two, forty-four and eighty-four, on Broad street, Albany, Georgia, and all those lots conveyed by W. W. Cheever and C. H. Parmalee, to John M. Dow, all of which said deeds are of record. The question in dispute between the parties is, whether by a fair construction of this agreement it was the intention of the parties to it that the lien of Kendall’s judgment against the property of W. W. Cheever, in consideration of the payment to him of $1,000, should be released and satisfied as to all the lots of land conveyed by W. W. Cheever, by deed, to John M. Dow, (including the lands in Mitchell county,) or whether it was the intention of the parties to relinquish the lien of Kendall’s judgment, only to such lots of land as had been jointly conveyed by Cheever and Parmalee to Dow. On the [615] hearing of the motion for the injunction several affidavits were read in evidence to the Court, including the affidavits of the attorneys who made the agreement as to what was the meaning placed, on the contract by the parties, and understood by them, at the time it was made, under the provisions of the 2714th section of the Code. Upon this point in the case the evidence was conflicting. It was manifestly the intention of the parties to releaseand satisfy the plaintiff’s judgment lien on Cheever’s property, and the words of the agreement are broad enough to cover all the lots of land conveyed by Cheever to Dow by deeds, then of record, as well as all the lots conveyed by Parmalee to Dow by deeds of record, unless it was the intention and understanding of the parties at the time tha(t the release of the lien of the plaintiff’s judgment should only extend to such lots of land as were conveyed jointly by Cheever and Parmalee to Dow. Parmalee does not appear to have been a party to the suit which was the subject matter of the settlement. The subject matter of the settlement was the release and satisfaction of the plaintiff’s judgment lien against the property conveyed by Cheever, and if it was the intention and understanding of the parties to the agreement that the relinquishment of the plaintiff’s judgment lien should be restricted and confined only to such lots of land as were jointly convejmd by Cheever and Parmalee, that is a question of evidence which should be submitted to the jury on the final hearing of the cause. In our judgment, the words of the agreement, when considered in relation to the subject matter of it, do not necessarily require the construction insisted on by the plaintiff in error. In view of the statement of facts alleged in the complainant’s bill, her remedy in a Court of law would not be as adequate .and complete as in a Court of equity; it will prevent a multiplicity of suits by quieting the title to a number of lots of land by one final decree, and remove a cloud from her title, if the allegations in her bill be true. Let the judgment of the Court below be affirmed.