Lee v. Clark

McCay, Judge. 1. There was no error in dissolving this injunction. This Court, in the case of Jones et al. vs. Macon & Brunswick Railroad, 39 Georgia, 138, has held that to justify the use of this extraordinary writ the statements of the complainant must be positive, and within his own knowledge, or if he cannot say this, but relies on information and belief, he must bring with him the sworn statements of those who do know. And this [85] is only a reasonable and proper requirement. The whole equity of this bill turns upon the message received by the complainant from Dr. Conyers. The bill does not say this message was sent by Conyers within the personal knowledge of the complainant. Indeed the inference is rather to the contrary. This brings the case within the decision referred to, and the injunction ought never to have been granted without other evidence. 2. But we are clear there is equity in the bill. It alleges that the complainant received a message from Dr. Conyers that he might safely make the deed, as he would take Confederate money from Horton; that as he knew Horton had the money, and was anxious to pay it, he did make the deed. True, it is not stated positively that Dr. Conyers sent the message, nor is any precise date stated. But the other facts stated show when the exchange of lands was made, and it is said this occurred shortly after. As to the want of a positive statement, that it is true, is a good reason why the temporary injunction should not be granted. But does that make the bill subject to demurrer ? The demurrer admits as true all that is stated. It therefore admits that complainant “ received a message” from Dr. Conyers as stated. Could he have received the message if it had not been sent. If I say I received a message from A, and he comes into Court and admits I did so, does he not admit that he sent it ? And if it be proven on the trial that complainant did receive such a message from Dr. Conyers, no jury would hesitate to decree on that proof, since it is impossible that he should receive such a message unless it was sent. If such a message was sent to complainant by Dr. Conyers, and complainant received it and acted on it, we think that discharged the lien of the mortgage. Nor is there on this contract (for a contract it is, if the facts be proven, since it was a proposition of one, on which the other acted to his own hurt,) any remedy at law. With this contract Horton had nothing to do. As to him Conyers might repudiate it, but as to complainant he could not, since he had acted on it, and put himself in a new and not so good [86] a position. He has no remedy against anybody on this contract, except the very remedy he asks, to-wit, the release of his land from this lien. We think, therefore, there was equity in the bill, and the Court erred in dismissing it. Judgment reversed. TripPe, Judge, concurred, but furnished no opinion.