Sharpe v. Kennedy

McCay, Judge. "We are not prepared to say that there is not equity in the facts set forth in this bill. Under section 2155 of the Code, if the surety tender to the creditor the amount due, and demand the evidences of the debt and any securities the creditor may have, to be delivered to him, and the creditor fail to comply when within his power, this will operate to discharge the security. The language of the law is plain and positive. As to control and possession of the fi. fa., that goes to the security by operation of law on the payment, and if placed by the creditor in the hands of the sheriff, we do not think a transfer would be necessary. But it was, as we think, the' duty of the creditor to pass the title of these lands to the security, Brown consenting; and did the case stand on the [263] charges in the bill alone we should feel compelled to reverse the judgment. But the answer contradicts several of the material charges in (he bill. It replies that the security demanded a warranty deed. lie had no right to that. The answer also denies the tender, and this is supported by Harper’s affidavit. Now we do not Say that the money must have been counted out and offered by an-outstretched hand to the creditor. But by the answer and by Harper’s affidavit, there was no money offered j there was a proposition to pay on certain terms. A proposition to pay and a tender, are by no means the same thing. The former may exist without any element of the latter. We do not feel that the evidence of a tender is sufficiently strong to justify us in reversing the judgment. It is the settled rule, that on questions of fact the evidence must be strongly against the judgment of the judge to authorize this court to reverse his judgment in injunction cases. We do not think the dismissal of the affidavit of illegality is a bar to a proceeding in equity, though it may be one of the facts which may operate on the mind of the judge to control his discretion in refusing the injunction. The putting in of so meagre and inconclusive an affidavit when the facts were as well known then as now, may have been a mere pretext for delay, and taken in connection with the conflict of the evidence, may have tended to incline the judge in favor of the plaintiff in fi.fa. We do not think the -want of knowledge on the part of Kennedy at the time the money was loaned, as to who was the principal, was material. He had the notice at.the time of the alleged tender, and he acted in this respect at his peril. We simply refuse to reverse the judgment denying the injunction. If the facts are with the plaintiff he can so satisfy a jury, and if he has paid the money, or it has been collected out of him, the jury can decree its return. There is no allegation of Kennedy’s insolvency, and the only harm that can happen is the use of the money, and prima facie, Kennedy is entitled to that by the judgment. It may, however, be well enough to say that if it should [264] appear that this deed was at the time worthless — -that is, if the property was as defendant says — all disposed of by a good homestead before this alleged tender was made, we do not decide that even a tender and refusal to make the deed would release the security. The deed and bond were in fact only a mortgage, and if that was at the time wholly inoperative by reason of the homestead, we incline to the opinion that the presumption of harm, or the chance that he might be harmed by the refusal, would be rebutted, and that the case in 37 Georgia, referred to in the argument, would be inapplicable. We would also say, in conclusion, that if, as defendant’s answer shows, he was defrauded and misled by the complainants into accepting a deed from Brown to property that belonged to them, they clo not come into a court of equity with much grace, and that Kennedy may give them a good deal of trouble by a levy on that property even if they be released as securities. On the whole, we feel constrained to affirm the judgment denying the injunction. Judgment affirmed.