Wolfe et al. vs. Claflin & Company et al. WOLFE et al. vs. CLAFLIN & COMPANY et al.* 1. As a general rule, a party must pursue his legal remedies to their available extent before he can go into equity for relief; but this rule is not without exceptions. Where a creditor shows that his rights are in peril; that he has sold goods to a defendant upon the faith of the latter's representations, which were false and fraudulent; that he rescinded the contract and claimed the goods as his own; and that defendant had given a mortgage on the goods to a person residing in another State, which was claimed to be fraudulent, which had been foreclosed, and under which the goods were about to be sold, a case for equitable interference is sufficiently made out. 2. In a case of this kind, the chancellor may look to the whole case, its general countenance and bearing, and after considering the case as presented by the pleadings and proofs submitted, should, if he believes the ends of justice require it, put his hands upon the property in question and keep it in statu quo until a jury can pass upon the case. (a) In this case, a wise discretion was exercised, and the rights of the defendants guarded by requiring bond of complainants before appointing a receiver. May 21, 1888. Equity. Injunction. Receiver. Remedies. Debtor and creditor. Fraud. Before Judge JENKINS. Morgan county. At chambers, March 28, 1888. Reported in the decision. FOSTER & BUTLER and CALVIN GEORGE, for plaintiffs in error. MCHENRY & MCHENRY and WEIL & BRANDT, contra. BLANDFORD, Justice. 1. As a general rule, a party must pursue his legal remedies to their available extent before he can apply to a court of equity for relief; but this rule is subject to some exceptions. Where a party shows that his rights are in peril and he is in danger of losing them; that he *BLECKLEY, C. J., did not preside in this case, on account of indisposition. Wolfe et al. vs. Claflin & Company et al. had sold goods to the defendant upon the faith of the latter's representations, which were false and fraudulent, and afterwards rescinded the contract and claimed the goods as his own; and that the defendant had given certain mortgages on the goods to persons residing in another State; we think this makes out such a case as falls within the ruling in the case of Cohen vs. Meyers, Cohen & Co., 42 Ga. 46. In that case this court held that a creditor, although not a judgment creditor, might, under certain circumstances, resort to equity. And that case is sustained by the rulings in Cohen & Co. vs. Morris & Co., 70 Ga. 319; Johnson & Co. vs. O'Donnell & Burke, 75 Ga. 456; Orton et al. vs. Madden et al., 75 Ga. 83. 2. It is further insisted in this case that the allegations in the bill were not sustained by affidavits or proof submitted to the chancellor on the hearing; and therefore that he committed error in granting the injunction and appointing a receiver. We think that in a case of this sort, the chancellor may look to the whole case, its general countenance and bearing, and after having considered the case as presented by the bill, together with such proofs as may be submitted to him, should, if he believes the ends of justice require, put his hands. upon the fund in question and keep it in statu quo until a jury can pass upon the case. And only a very strong case would authorize this court to interfere with the discretion of the court below in so doing. We think this position is fully sustained by the authorities cited by counsel for the defendant in error. Wachtel vs. Wilde, Jr., & Co., 58 Ga. 50; Albany and Renssellaer Iron and Steel Co. vs. Southern Agricultural Works, 76 Ga. 169. We think, therefore, that the chancellor committed no error in granting the injunction and appointing the receiver; that this is a proper case to be held up until the White vs. Furtzwangler. And while matter can be investigated before a jury. great harm might come to these complainants, the defendants in error, if the injunction were not granted and a receiver appointed, we cannot see any harm that can come to the plaintiffs in error, inasmuch as the complainants were required to give bond and security to the plaintiffs in error, for all damages that might be sustained by them in consequence of this proceeding in the event the same should not appear to be well-founded. Judgment affirmed. WHITE US. FURTZWANGLER. 1. Under the evidence, it seems that the jury found too small a sum in favor of defendant in error, rather than too large. 2. If there were any error in the charge complained of in the motion for new trial, it was error favorable to plaintiff in error. May 4, 1888. Mortgages. Verdict. Charge of court. Before Judge WELLBORN. Lumpkin superior court. April term, 1887. Furtzwangler filed his petition to foreclose his mortgage on two lots of land, containing eighty acres, and "also the water-ditch running from Camp and Crooked creek to said lots of land, used for mining purposes, all together known as the Pigeon Roost gold mine." He alleged that this mortgage was given by George W. White to secure a promissory note for $5,000, and that 300 had been paid thereon. White interposed his defence to this effect: He bought from plaintiff the two lots of land and the waterditch, with the flumes, trestles, privileges, etc. connected with the ditch, as one entire property and for one entire price, which was $6,500. At the time of the pur White vs. Furtzwangler. chase he paid $1,500, received a fee simple warranty deed to the entire property, and as part of the same transaction made his note for $5,000 and a mortgage to secure it. Afterwards he paid $1,300 on the note. The two lots, at the time of the purchase and now are not of any appreciable value except for mining purposes, for which their value was and is almost entirely dependent on the accessibility of a reliable supply of water. The only water procurable for mining on the lots is that furnished by the ditch, and thus the control and use of the ditch and water supplied by it are the principal elements of value in the entire property, and constituted the only inducement to the purchase. Without the ditch, the lots were not at the time of the purchase, and are not now, worth more than $1,500. For these reasons, the land and ditch were bought as an entire property and for one entire price. All these facts were then and are now well-known to the plaintiff. After his purchase, the defendant sold the lots to the Pigeon Roost Gold Mining Company for one entire price, which was a number of shares of stock in that company and its promissory note for $5,000, and he made it a conveyance and warranty title to the entire property, taking its mortgage to secure the note. The stock was based solely on this property, the company having no other property, and the value of the note and mortgage were wholly dependent on the property. After this latter sale, while defendant was in possession of the entire property, as president of the company, one Barlow filed his bill against the defendant; and after due proceedings, the title to the ditch and the sole right to its use and control were adjudged to be in Barlow. Wherefore defendant entirely lost his valuable property, the company being insolvent except as to the lots of land; and hence he says he ought not to be compelled to pay White vs. Furtzwangler. plaintiff's note and mortgage, and asks for a rescission of the entire contract or a reduction in the contract price, and that the mortgage may be cancelled, etc. The plaintiff set up, by way of reply, that respondent bought with full knowledge that the title to the ditch was unsafe; that the property was not sold as a whole, but respondent agreed to purchase the land and take the ditch along with it, knowing that the title to it was in dispute, or soon would be, and agreeing to release the plaintiff from a warranty, so far as it was concerned, and take his chances on the title to it. On the hearing, the note and mortgage were introduced; also a warranty deed from the plaintiff to the defendant to the land, the ditch, flume, etc., the ditch being stated to be now conveying water to said land for mining; also, as of the same date with this deed, a written release from the defendant to the plaintiff, stating that, notwithstanding the warranty deed, it was agreed that the plaintiff should not in any way be liable so far as related to the water-ditch, its privileges and easements, if the title as conveyed in the deed should fail, "except further, if the said Furtzwangler should fail to obtain title to said ditch from all the stockholders of the Pigeon Roost Gold Mining Company, then he is to be liable on said warranty to that extent only." The following oral testimony, in substance, was introduced: The defendant testified that he purchased the land with the water-ditch as one entire property for $6,500, the consideration being named $10,000 in the deed, to help him in any sale he might want to make; that there was no other reliable supply of water to mine on the lots; that the water and ditch constituted nine-tenths of the value of the property; that he paid more than the land was worth, and would not have bought at all |