Collier v. Perkerson , 31 Ga. 117 ( 1860 )

By the Court:

Jenkins, J.,

delivering the opinion.

This action was instituted under an Act of the General Assembly, approved December 27, 1831, entitled: “An Act defining the liability of purchasers, at executor’s, guardian’s, administrator’s and sheriff’s sales, when they refuse, or fail to comply with the terms of such sales.”

The defence set up was, that the defendant bid off the property under a mistake of law, as to his rights. In support of his defence, the defendant offered proof that he and the' only other bidder both bid under the impression that the proceeds of the sale would be applied first to the satisfaction of defendant’s mortgage — the lien of which was older than that of the judgment under which the sheriff sold the property, but which had not then been foreclosed' — and afterwards to the satisfaction of the judgment. He did not know (though he and all present were cognizant of the existence and the superior lien of his mortgage) the legal consequence of his bid would be, the payment of the full amount so bid, to be ap>propriated, firsf, to the satisfaction of the judgment creditors’ demand, and then to the uses of the defendant in execution, leaving him, as his only means of satisfying his mortgage, recourse upon the very property which he had already purchased at its full value.

Ga. 49; Adams .«. Gierard, 29 Ga. 651; Lucas v. Lucas, SO Ga. 191; Collier v. Perkerson, 31 Ga. 117; McCrary v. Austell, 46 Ga. 450; McCallum v. Brandt, 48 Ga. 439; Langston v. Aderhold, 60 Ga. 376; Werner v. Rawson, 89 Ga. 619; Bohler v. Verdery, 92 Ga. 715; DuBignon v. Bruns- . wick, 106 Ga. 317; Woodside v. Lippojd, 113 Ga. 877.' A casual examina- ■ tion of the rulings made in these cases will suffice to show that while this court has constantly recognized that relief against mistakes of law, as well as mistakes of fact, may under certain circumstances be granted by a court of equity, in no instance has this court held that such relief can be granted to á party who, like the plaintiff in error, offers no better excuse for his failure to take proper steps to protect himself than that he-was ignorant as to the law and supposed he would acquire an advantageous position bv voluntarily doing precisely what he ought not to have done in attempting to gain and preserve a preference." Atlanta Trust & Banking Co. v. Nelms, 116 Ga. 923-4.

The Court refused to receive this evidence, and also refused to continue the cause, that he might seek redress in equity. And to these rulings, denying him relief in either jurisdiction, defendant excqited. The refusal to continue, with a view to change of jurisdiction, was proper, for the reason that, if plaintiff’s claim was unfounded, defendant’s remedy at law was 'ample.

But was the Court right in denying his defence in the action pending?

It was argued with much earnestness that the terms of the statute are positive — that liability to pay the difference between the amounts of the first and second sales, is the inevitable consequence of failure or refusal to' pay the purchase money of the first sale. The usee in this action is the defendant in execution — the previous owner of the property, the plaintiff in execution, having tjeen satisfied by the resale. Suppose, instead of the defence here set up-, the defendant had pleaded and proven that he had been induced to bid for the property more than its value, by false and fraudulent representations of the plaintiff’s usee, regarding the property, its location, the improvements upon it, or other elements of value. Surely, in such a case it would not be insisted that in legislative intendment the plaintiff should take advantage from his own wrong. Then there is no such inevitable consequence resulting from the statute. The intention of the Legislature was to give a more summaiy remedy in such cases, not to malee contracts entered into at such sales more sacred than all others.

The only remaining question, then, is, whether mistake of law, the facts being clearly understood, is a good defence to an action brought to enforce a contract. The principle involved has been settled by this Court.

In the case of Culbreath vs. Culbreath, 7 Geo. Reports, 64, it was decided, that “money paid by mistake of law, may be recovered back, in an action for money had and received, 'where there is a full knowledge of all the facts; provided, the mistake is clearly proven, and the defendant cannot, in good conscience, retain it.” The same principle, precisely, pervades the following proposition: Mistake of law is a good defence against an action to recover money under a contract of purchase, where there is a full knowledge of all the facts; provided, that the mistake is clearly proven, and the plaintiff can not, in good conscience, receive the money.

There was, in the case before the Court, a full knowledge of all the facts at the time of the sale. The defendant, at the trial, took upon himself the onus of proving the mistake clearly; and this done, the inference would be irresistible that the plaintiff could not, in good conscience, receive the money. The defendant offered to prove that the price paid for the land on re-sale (of which the plaintiff received the benefit) added to the sum due upon defendant’s mortgage, would make an.amount about equal to- defendant’s final bid at the first sale, and fully equal to the value of the property. The property was sold subject to defendant’s mortgage; when, therefore, the property shall have been again sold to satisfy the mortgage, plaintiff will have realized its full value. Should he in this action recover the difference between the two sales, in amount, he will thus (according to the case made in the record), take from defendant all that is due him upon the mortgage. Can he 'do so in good conscience? We say not that defendant is entitled to a verdict, or that the verdict rendered was wrong. That must depend upon the-proofs made. ' But, believing that this case is within the ruling in Culbreath vs. Culbrecutk, we hold that the Court below erred in ruling out defendant’s evidence, thereby denying him his defence, and for that reason reverse the judgment.

JUDGMENT.

Whereupon, it is considered' and adjudged by the Court, that the judgment of the Court below be reversed, because the Court erred in rejecting evidence, offered by the defendant, to show that he had purchased the property for which he was sued under a mistake of his legal rights; and in holding that such mistake, if clearly proven, could not avail him as a defence in this action, and, further, that the judgment and verdict in the Court below be set aside, and a new trial ordered.