Hightower v. Cravens , 70 Ga. 475 ( 1883 )

Hall, Justice.

1. The plea of former recovery, set up in this case, was properly sustained by the court below. Every fact relied upon in the present case was well known to the complainants when the former suit was instituted, and might and could have been pleaded and insisted ivpon in that suit. In Smith vs. Hornsby, decided at this term of the court, all the questions made in this case were fully considered, and the authorities bearing upon them carefully collated and examined. There as here, the facts were known, and we held that, if relied upon for one purpose, though mispleaded or not set up at all, and the party failed to make a proper legal use of them, he was nevertheless bound by the decree rendered in the former case.

2. The decree rendered in this case, allowing the defendants to redeem the land, upon payment of the purchase money, was authorized by the prayer to that effect found in defendant’s answer, which in that respect was doubtless treated by the chancellor as a cross-bill, and we think properly so. It is true that the notes for the purchase money had been transferred to and were then held by another person, who was no party to the suit, though the answer distinctly states that he was willing to become a party, and the decree directs the payment to be made to the defendant who, it appears, was bound as indorser of the notes. If it was the purpose of the complainants to become the owners of this .land, and they were ready and willing to comply with the terms of the purchase, they could easily have protected themselves by making the holder of the same a party to the suit. Though apprised in ample time, of his interest in the matter, they neither sought to make him a party nor do they appear at or before the hearing to have taken steps for their protection in this respect, nor did they then make and insist upon any objection to this feature and purpose of the answer. Even now, their bill of exceptions sets up no specific objection to this portion of the decree. The exception to the decree is general and goes to its entirety. If they have suffered by its terms, their loss is attributable to their own neglect, and they must abide the consequences. It is quite apparent that, if a wish had been intimated, upon their part; that they should pay to the holder of the notes, it would have met the concurrence of the defendant, whose answer placed them in possession of all needed information as to the holder of the 'notes, and also informed them of his willingness to become a party, if they chose to make him one. It was not in the power of the defendant to do this, but so far as concerns the complainants, there was no obstacle, legal or otherwise, to their doing so.

Judgment affirmed.