Brown v. Crowley , 39 Ga. 376 ( 1869 )

McCay, J.

The evidence in this case is very strong that both these parcels of land were sold by Brown to Crowley, and that the note sued on is a part of the consideration. It is true Brown denies this, and says that as to the Hightower land he, avowedly, only acted as agent. But this is contradicted by Crowley, and is wholly inconsistent with the facts stated by Stewart, ivho drew the deeds, as well as by the recollection of Wright, that the $1000 00 note was payable to Brown. Stewart directly corroborates Crowley, and says that when they came to have the deeds written, Brown suggested that it was unnecessary to have two deeds to the Hightower land, which he had previously bought, but had not got. the deed, as a deed directly from Hightower to Crowley would be sufficient. The jury were not only justified, but bound to find for the defendant under the evidence; the justice and equity of the case is clearly that way, and a new trial ought not to be granted, unless there be some stubborn rule of law which requires a verdict for the plaintiff.

It is contended that under the Statute of Frauds, the evidence that this note was given, as set up by the defendant, is illegal, as it all rests in parol; that it also contradicts the deeds made at the time, and that according to his own showing Crowley agreed to rely on Hightower’s warranty, and as a consequence waived any obligation from Brown. We think neither of these views controlling. There was no intention of Crowley to waive anything. He had bought from Brown, at his suggestion, and by the advice of the scrivener, that it would do just as well, he took a title direct from Hightower, merely to save writing. It was thoroughly understood, that this was with the belief that it would do just as well as if two deeds were to be made. It has not done just as well. The intent was to give Crowley a good and sufficient title. By Brown’s suggestions he failed to get it, though both he and the writer of the deed thought the paper drawn answered every purpose that a deed from Hightower to Brown, and a deed from Brown to Crowley, would have done. If Brown knew this mortgage was upon the land, then his conduct was a fraud upon Crowley. If he did not know it, then he, as well as Crowley, acted under a mistake, and it is contrary to equity to permit him to take advantage of it. He was bound to make Crowley a good title, and Crowley has not, with any intent so to do, waived the obligation. In the defence of a note the defendant may, in this State, set up at law any defence that would be good in equity. Without doubt, if Crowley took the deed direct from Hightower, with the belief that it was just as well,‘and he was mistaken as to the fact, equity would relieve him, as against Brown, from the consequences of this mistake.

This same line of reasoning is a reply to the other positions. If Bi’own was guilty of a fraud, or if the parties acted under a mistake of fact, equity will not refuse to interfere because it is necessary to resort to parol evidence. In the search after fraud, or to correct mistakes, the rule that deeds speak for themselves, and that contracts in reference to land must be in writing, does not obtain, and in a case like the. present, under our law, the parties stand just as though there was a bill filed. The case is simply this: Crowley buys the land from Brown and gives his notes. Either by a fraud of Brown, or by a mistake of fact, to save two deeds, Crowley takes a deed from Hightower, Brown saying that such a deed would answer the same purposes as a deed from Hightower to him and then a deed from him to Crowley. It turns out that in fact there is a mortgage on the land, given by Hightower, which Crowley has to pay. It seems to us the clearest equity that, in this state of facts, Crowley may have the amount recouped against the note still in Brown’s hands and now sued on.

Judgment affirmed.