DeGive v. Healey & Berry

Warner, Chief Justice. This was a bill filed by the complainant against the defendants to set aside two certain agreements made between the parties as therein set forth, on the ground that one of the agreements was entered into under a mistake of law, and that the other was entered into under a mistake of fact. The defendants demurred generally to the complainant’s bill for want of equity. The court sustained the demurrer and dismissed it, whereupon the complainant excepted. 1. The alleged mistake of law as to the mechanic’s lien of Healey & Berry on the Masonic Hall property, was no mistake at all. Loudon et al., vs. Coleman et al., 59th Ga., 653. 2. The alleged mistake of fact is that the attorney of Hea-ley & Berry, at the time of making the alleged agreements, represented to complainant that Meador & Tumlin had no lien in law which could be made available either against the Masonic Hall property, or against the fund which arose from the sale thereof, because they had attempted to foreclose it by affidavit, and summary execution, which was not the legal mode, and said lien was of no force ; that by this statement, complainant was induced to make said agreements which he otherwise would not have made. The complainant also alleges that at the time said representations were-made to him, the lien of Meador & Tumlin was fully established by the courts, both as a mechanic’s and a general judgment lien, not by affidavit and summary execution, but by regular record of said lien and suit, as required by law, and was in point of fact, at the time, prior in dignity both as a mechanic’s lien, and as a general judgment, to the lien of Healey & Berry. The alleged mistake of fact occurred in 1869. The complainant’s bill to obtain relief against it, was not filed until December, 1877. Besides, the complainant exercised no diligence on his part to ascertain whether Meador & Tumlin’s lien on the property was a legal and valid lien; never examined the records of 396 the county, or the courts; never consulted his own attorney, for it appears he had one, but relied on the statement of the attorney of Healey & Berry as to the lien of Meador & Tumlin. There was no error in sustaining the demurrer to the complainant’s bill, and dismissing the same. Code, §§3125, 3126. Let the judgment of the court below be affirmed.