Printup v. Barrett , 46 Ga. 407 ( 1872 )

McCay, Judge.

We have examined the cases referred to as sustaining the claim set up by the plaintiff in error. But none of them go as far as is necessary even to furnish a principle on which this claim can be based. In the case of King’s Heirs vs. Thompson, 9th Peters, 204, the person claiming the lien was in possession, claiming the property in good faith as his own, and had expended money to improve it. And so of all the cases of a claim of lien on this ground. There are some English cases where a lien has been allowed in equity when the person claiming it can be said to stand within the reason of the rule giving a vendor of real estate a lien where he has taken no security. But as our Code has abolished this vendor’s lien, it seems to follow that, although liens 'which only can be sustained because they come within the equity of the vendor’s lien ought to fall with it. If the greater — the exemplar — does not exist, can it be said that the other does ? We do not, therefore, see how this lien can be sustained on general principles of equity.

Had the defendant, in his answer setting up this lien, stated or alleged that it was agreed there should be a written mortgage — that his money was advanced with this agreement, and that, by some fraud of Bailey or by some accident, the written mortgage was prevented from being executed, there would be some ground to stand on. Fraud or accident opens the door for a reply to the statute of frauds. But see Price vs. Cutts, 29th Georgia, 147. But here is no such proof nor any such obligation. It is true, one of the witnesses states that Bailey told him he was to give a mortgage ; but Mr. Printup, who is presumed to have stated his case as strongly in his answer as he could, says nothing of any agreement that there should be a writing. And even if this were stated the element of fraud or accident would still be wanting. The agreement may have been had, that the written mortgage was to be given, and the failure to have it done been mere neglect of both parties. The statute is imperative, that mortgages and express trusts must be in writing : Irwin’s Revised Code, sections 1945-2284. Equity will only interfere when the setting up of the statute would be to protect a fraud or prevent relief against an accident. Neglect— inattention to one’s own business — mere failure to see to it that an agreement is made and signed, as stipulated, is not such an accident as equity will relieve against. It does not come to the aid of the sleeper, but of him who, though awake, has been entrapped by fraud or been prevented from getting his agreement put into writing by inevitable accident.

Judgment affirmed.