Horne v. Rodgers

Lumpkin, P. J.,

dissenting. The decree involved in this case should be interpreted in the light of the pleadings upon which it was rendered. Thus dealing with it, I think its true meaning was that Rodgers, having eliminated any danger to Horne’s title arising from Carstarphen’s mortgage, was entitled' to a judgment against Horne, and that execution thereon should issue upon Rodgers merely filing in the clerk’s office a warranty deed, in proper form, purporting to convey to Horne the lots in dispute. In my opinion, the decree did not mean, and should not be construed to mean, that this deed should have the legal effect of investing Horne with a perfect and unequivocal title against all mankind, or even a title which might be regarded as marketable. Granting that the rules laid down by the Chief Justice for the construction of contracts for the sale of land are all sound and well supported by authority, I am unable to see their application to the decree in question. Giving to it the meaning which I have indicated above, the question is: was the judge right in denying Horne’s application for an injunction on his present petition ? This petition was in the nature of a bill of review; and if available at all, it could only be so on the theory that Horne, for the reasons shown, had a right to set aside the original decree and substitute in its stead another decree fully protecting him in the premises. There are at least two good reasons for upholding the refusal to grant the injunction prayed for. The first is that Horne could not maintain his petition without showing that, unless he was granted the relief asked, he would be remediless and subjected to ultimate loss. In other words, equity would not take care of him unless he needed equitable relief. There was no allegation of insolvency as to Carstarphen; and as he was a warrantor behind Rodgers, Horne was not remediless; nor was his case maintainable upon the theory that he could not be compelled to pur*233chase a lawsuit, for his rights had been fixed by the original decree, which remitted him to the remedy afforded by the warranty, and upon this he ought to be required to stand, unless able to show that, because of the insolvency of both Rodgers and Carstarphen, the warranty will not protect him. Secondly, the evidence warranted the judge in finding that, before even the first decree was rendered, Horne knew there was some defect about the title on account of the claim of the Holmes heirs, expressly so stated to Carstarphen, and in the same connection remarked that he (Horne) cared nothing for this claim, but was only concerned about the mortgage which Carstarphen held. If, with such knowledge, Horne failed to make this attack on Rodgers’ title in the first petition, a court of equity should not allow Horne to set aside the first decree on a ground of which he had knowledge when he prosecuted his former action, but of which he did not avail himself while the litigation thereon was pending and before it reached its final stage.