Sasser v. Olliff & Kennedy

A petition for injunction was presented on October 4. to restrain tbe enforcement of judgments rendered by default on April 25, 1892, on promissory notes [85] given for deferred payments of purchase money of land. On considering the petition the judge denied the injunction, and the petitioner excepted. He alleged, in brief, as follows: On December 23,1889, he purchased of Olliff & Kennedy a tract of land in Bulloch county for $2,500, paying a large amount in cash and the balance in notes, said purchase being by the acre. At the time of the purchase Kennedy, a member of said firm, represented to him that there were 450 acres in the tract, which representation he knew to be false, for the firm on February 17, 1888, purchased said tract from one Nessmith, and were informed by Nessmith at the time of the execution of his deed that the tract only contained 537 acres, “and after being informed as aforesaid as to the number of acres, insisted upon and did then and there of his own volition increase said number of acres 63, making a total of 600 acres.” Afterwards Olliff & Kennedy sold off’ to one Harville 200 acres of the tract, leaving 337 acres according to original deeds, and 400 acres according to their own deed. But at the time of said purchase, defendant Kennedy, for the manifest purpose of defrauding and deceiving petitioner, knowingly and wilfully increased said number 50 acres more. Petitioner has had the tract surveyed by the county surveyor, and there are in fact only 229 acres therein, “a difference of 151 acres at $5.55-| per acre, a total cost of $858.88-f, for which petitioner receives no consideration, and which of itself shows clear fraud.” At the time of the purchase he gave his nine promissory notes, with C. W. Zetterrower, C. C. DeLoach, Allen Lee and Berrien Davis as security, for the sum total of $720.84 principal, with interest from maturity, and ten per cent, attorney’s fees. Petitioner, relying upon and confiding implicitly in the representations of Kennedy as to the quantity of acres in the tract, was deceived, misled and [86] defrauded into giving Ms notes, acting in good faith and believing he was getting 450 acres, when he would not have made the purchase and given the notes had he known of the deficiency. In the exercise of all diligence, so soon as he discovered the deficiency he went and told Kennedy that they had deceived and defrauded in the sale of the land; and Kennedy then and there admitted that the land was not there, and that it was a mistake or oversight of his, but refused to make this amount good. Suit was brought on the notes at the April term, 1891, of Bulloch superior court; and petitioner, intending to make a defence, employed T. H. Potter, then a practicing attorney of said court, and paid him $20 as a part of his fee; and the three cases stood for trial at the October term, 1891, but for some reason unknown to petitioner they were continued to the April term, 1892. A few days previous to the last term, petitioner had the misfortune to shoot and kill one Shep Hodge, and afterwards employed, as counsel to defend him for the shooting of the negro, D. B. Groover who was then attorney for Olliff & Kennedy and suing him on the notes. He was advised by Groover to conceal himself and not surrender to the sheriff until the last day of court. This was contrary to petitioner’s will and- desire. He was on the superior court ground of Bulloch county before the opening of court on Monday morning, and came with the manifest purpose of surrendering himself to the sheriff, because he desired to be present and defend said cases, but his counsel would not permit him to surrender. He exercised all possible diligence to ascertain what disposition would be made of his cases, and sent a special friend £0 make inquiry of Potter, and in reply received a message that Potter was sick in bed, and that all of his cases would be continued for the term. Belying on this message and on the advice of Groover, he gave the [87] •cases no further thought, believing that they were continued or would not be called for trial; but he was surprised afterwards to find that judgments had been rendered against him. He was surprised, deceived, defrauded out of his day in court, though he had a good •defence, to wit, apportionment or rescission for fraud in the sale of the land, or a failure of consideration, which he would have made had he not been so prevented. Executions have issued on the judgments, and he is threatened with an immediate levy of them on his property. He has no adequate remedy at law to prevent a sale of his property thereunder; but the notes were obtained and the judgments rendered by fraud, for which reason they are null and void, and ought in equity and good conscience to be delivered up and can-celled. Wherefore he prays, etc. H. B. Strange and R. Lee Moore, for plaintiff. No appearance contra.