Raines v. Dunning , 41 Ga. 617 ( 1871 )

*McCAY, J.

We do not think this a good bill to set aside the deed from Suggs to the complainant, and the entry of satisfaction upon the fi. fa.

True, if the sale of the timber is a good sale, then Suggs committed a fraud upon Raines: But this bill charges that the sale to Dunning was not good, that it was a fraud. If this be true, then Suggs’ deed is not fraudulent, and Raines has no right to complain, since however badly Suggs and Dunning have acted, he is not hurt.

We suspect, this phase of the bill, (that under the general prayer for relief the complainant might, under the facts, get a decree setting aside the whole agreement between him and Suggs,) is an after thought. The gravamen of the bill is against Dunning. Suggs is a proper party, for it is his deed to Dunning that is attacked. As a bill against Suggs, Dunning is not a proper party, since if his deed is a good one, he has nothing to do with the case.

But we think the bill has equity in it against Dunning. If the facts stated be trae, his purchase of the timber was mala fides as against complainant.

The judgment was a lien on all the land, including the timber; the timber was clearly an element in the considerations which induced Raines to satisfy the judgment; the contract was complete before Dunning interfered. In conscience, both Raines and Suggs were bound. The deed, subsequently, to-wit: on the 30th of May, was nothing but the reduction to writing of the previous agreement. Dunning, with a full knowledge of what Raines had agreed, creeps slyly in and buys the timber. If the facts stated be true, he knew he was practicing a fraud, aiding Suggs to impose upon Raines, and the fact that he antedatfed the deed is no light evidence of his bad intentions. To our minds it is clear that, if these facts be true, and J:his deed .to Dunning stands as good, a fraud has been committed on Raines, in which Dunning was a willful and conscious agent. It is not equitable that he ^should reap' the fruits of his aid to Suggs. And we, therefore, hold the bill a good one, and think the Judge erred in dismissing it and refusing the injunction. What the real truth is, as matter of course, does not appear to us.

Whether, on the coming in of the answer, with such supplementary affidavits as the parties may see fit to produce, the Judge may, or may not, dissolve it, we do not say.'

Judgment reversed.