Weaver v. Garner , 28 Ga. 503 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Was the court right in dissolving the injunction in this case ? We think so, most clearly.

Not only is the equity of the bill most fully and explicitly denied by the answers of the defendants, but there are strong reasons furnished by the answers why the injunction should not be continued. The rights of the .third persons in the note and which were acquired on account of the representations made by the complainant, Weaver, to them as to the circumstances under which the note was delivered over to Mrs. Earnum before they became interested in it, afford strong ground for dissolving the injunction. There are two facts which operate against holding up this injunction. In the first place, there is great probability that Weaver will succeed in the claim case now pending as to the title to this land. And not withstanding a new trial has been granted, the chances are that he will hold the land.

Again, it is not alleged in the bill that Garner is insolvent. True, he has removed to Texas; still, under all the circumstances of the ease, it is more just that Weaver should follow Garner to a foreign jurisdiction, should he lose the land, than that the rights and equities of Earnum and wife, and Vanover and Green, should be defeated and they be driven to sepk their redress abroad against Garner. It is doubtful whether they could assert any claim successfully against Garner, on the faith of the voluntary settlement made between Garner and wife — they were divorced. Could she go behind that divorce and set up any claim to Garner’s property? Weaver certainly can go against Garner, should he lose the land. It is doubtful whether Mrs. Earnum can; and if she has been misled in any way, it was by her agent and next friend, Mr. Weaver.

We had some doubt as to the legality of the settlement between Garner and his wife; but that question was elaborately discussed and solemnly adjudicated in the case of Chapman vs. Gray, (8 Ga. Rep., 841).

Judgment affirmed.