After the most careful and painstaking consideration which I have been able to give to the very complicated situation disclosed by this record, I concur with Mr. Justice Cothran in his conclusions on all the matters involved, with the exception of the following:
His conclusion is that all the assignments of the judgments which are discussed by him under his proposition No. 11 to Graham and Dendy were really obtained by Counts himself, for himself, and that the assignments to said parties are pretensive merely, and, further, that the legal effect is that the said judgments are to be regarded as paid and their liens destroyed, except as to the sums advanced by Graham and Dendy, respectively. I concur in these conclusions in so far as the same apply to the assignments of the judgments of the following: (1) Nashville Saddlery Company; (2) Parker Manufacturing Company; (4) Hughes Buggy Company; (6) Georgia Chemical Company; (7) Mitchell-Lewis Motor Company.
In each of the above the correspondence in the record, quoted at length by Judge Cothran, shows that Counts at least pretended to be trying to get rid of these judgments *Page 465 so as to relieve himself of the embarrassment of them in a business way. The arguments which he used to induce the judgment creditors to surrender and transfer their judgments for the small percentages offered were calculated to and doubtless did have the intended effect of creating the belief in the minds of creditors that Counts was acting solely for himself and for his own personal benefit in the matter, and that he was adopting this method of entirely getting rid of these outstanding judgments, as his letters indicated, even though the assignments were executed containing the name of Graham. They may well have thought that this was a legal method adopted by Counts for accomplishing his pretended purpose.
Graham testified (to which Counts agrees) that Counts undertook to buy up these judgments for Graham; that Counts was Graham's representative in the matter. If so, then Graham should be bound by the representations made by Counts, and by the pretenses by which he secured the assignments. If it be true, as now contended by Graham and Counts, that Counts had no thought of buying up and paying off these judgments for his own benefit (which is contradictory of Counts' attitude as disclosed in the letters), then it seems to me the judgment creditors above referred to were victims of deception, and that Mr. Graham ought not to be allowed to profit therefrom. Both parties should be held bound by the representations so made, even though it be shown in testimony that they were deceptive or untrue. Certainly they ought not be allowed to profit by them, if untrue.
I do not agree, however, with Judge Cothran that his conclusions ought to be applied to the following judgments: (3) Montgomery-Moore Company; (8) C.H. Russell Son; (9) Franklin Buggy Company; (10) Navassa Guano Company.
In these cases most, if not all, of the correspondence with the judgment creditors resulting in the assignments of the *Page 466 judgments was initiated and conducted by Messrs. Richey Richey, attorneys acting on behalf of Graham. In the case of the Russell Son judgment, which was finally assigned to M.W. Dendy, this was brought about by his son, J.J. Dendy. At any rate, in these cases the judgment creditors were not misled by any pretense of Counts that he was paying off and getting rid of the judgments, but were put on notice that what was wanted were actual assignments of the judgments to Graham and Dendy, respectively who also furnished the money. I do not feel that the circumstances under which these assignments were obtained were such as to estop Graham and Dendy from claiming the benefits of the assignments, but, on the contrary, they shall be adjudged to be the owners of such judgments respectively.
I think, therefore, that the judgment of this Court should affirm the judgment of the lower Court in so far as it adjudicates the title of the judgments last mentioned above in Graham and Counts respectively, and that said parties should be allowed to enforce said judgments with interest and costs against the real estate mentioned, subject, however, to the amount due on the Lucas and Enterprise Bank mortgages, with interest and costs, and $1,000 attorney's fees, and also subject to the $1,000 homestead exemption of Counts, which was assigned to M.A. Owings by the deed of Counts; that, with the exception of the matters mentioned, the judgment of this Court should be as outlined by Judge Cothran.