Douglass v. Thomson , 39 Ga. 134 ( 1869 )

Brown, C. J.

While Douglass, the plaintiff in error, has been very unfortunate in his management, and has sustained heavy loss, we do not see how it has resulted to the benefit of Thomson, his surety, who had no interest in the purchase, but became surety for Douglass for his accommodation, and has had to borrow money at three per eent. per month to meet the obligation of Douglass, for which he was bound as surety. Since the purchase of the land by Thomson, his answer shows that he gave Douglass a fair opportunity to sell it, and pay back to him what he had paid out, with privilege to retain the balance for his own benefit; and Douglass found himself unable to make a sale for a sum sufficient to indemnify Thomson against loss. Indeed, Thomson swears that he is still willing to reconvey the property, if he can get his money back.

Judge Cole decided that the equity of the bill was sworn off by the answer, and dissolved the injunction, but held up the bill for a hearing on its merits. We cannot say that he abused the discretion vested in him by law.

As Douglass had rented the lands from Thomson, and paid rent as a tenant, and as Thomson had been put to great inconvenience, and had paid out a large sum of money to protect his property from levy and sale, when he was only a surety, we think he is entitled to the possession of the premises pending the litigation. This is the effect of the ruling of the Court below, as we understand it, and we find no fault with it.

Judgment affirmed.