·1UCKS V. JENNINGS.
insolvency, to remain in the custody of its effects and to .administer them? Could the court expect to attract and retain the confidence of the public and of its suitors, if it should sanction such an act? I think not. The insolvency .and abnegation of the company left its effects in the legal and rightful custody of no one, and the court must at once provide for the emergency by appointing a. receiver. It has not been the policy or practice of this COUl't, in appointing receivers for insolvent companies, to appoint anyone who had been officially and responsibly connected with the mismanagement which brought his company's affairs to ruin; and, for that reason, I cannot appoint Mr. Blakey as receiver here, in whose personal integrity I would otherwise have the utmost confidence, and whose ·high character I most cheerfully acknowledge. The judge then announced the appointment of A. L. Boulware, Esq., as receiver of the company·.
HWKB and Wife
(Oircuit Court, N. D. Georgia.
1 MORTGAGE-FoRECLOSURE-FRAuD.-Several tracts of land were sold under one contract, and separate deeds naming a distinct consideration were given for each tract. that fraud and want.of consideration in the sale of one tract could be set up as·a defence in a suit to foreclose a purChase-money mortgage upon another of such tracts. 2. 8AME-SAME-SAME.-Had, further, that such could be Bet up against the heirs and distributees of the mortgagor, where such mort· gage had been transferred to them as an adv·ancement.
In Equity. The purpose of this suit is to foreclose a mortgage executed by the defendant to one Henry Irby, now deceased, dated 1fay 7, 1877, on certain lots of land in Hall county, Georknown as the "Glade Mines," and conta.ining 2,000 l1cIes, to secure a note dated the said May 7, 1877, made by ·
said Jennings, and payable to said 1rby, for $10,000, and fall. ing due January 1, 1879. The note recited on its face that it was given for part of the purchase price of the Glade mines, in Hall county, Georgia. Upon this note the defendant paid, on December 31, 1878, the sum of $5,000 principal, and all the interest due up to that date; and, by an indorsement made on the mortgage by the payee of said note, the time for the payment of the note was extended to January 1, 1880. The bill alleged that in January, 1879, Henry 1rby, the payee of said note, assigned said note and mortgage to the complainant Royal B. Hicks, and delivered the same to the complainant Sarah Jane Hicks, who was his daughter, as an advancement to her out of his estate, and the same was then and there accepted by her as such; that on February 20, 1879, said Henry Irby departed this life, and afterwards, on April 7, 1879, John F. 1rby, who was a son, and C. L. Walker, who was a ·son.in-Iaw, of said Henry Irby, for the .purpose of carrying out the wishes of said Henry 1rby in reference to said note, signed a transfer of all their interest in the same to complainant Royal B. Hicks, and authorized him to receive the money due on the same. The consideration of this transfer by John F. Irby and Walker was an agreement on the part of Sarah Jane Hicks to accept said note as an advancement, and account for the same in the final settlement of Henry 1rby's estate; and the complainants, Hicks and wife, agreed to pay over to John F. Irby, and to C. L. Walker, for his wife, Agnes Walker, $10,000 belonging to the estate of Henry Irby, then on deposit in a bank in the city of Atlanta. Of this sum $5,000 was actually paid on July 18, 1879. The defence relied on is stated substantially as follows: On April 27, 1877, the defendant entered into a contract in writing with the said Hemy Irby for the purchase of certain mining lands in Georgia, then owned by said Irby. There were two tracts in Hall county, kllOwn respectively as the Glade mines and Chapman mines, each containing 1,000 acres, and lying contiguous to each other, and all designated as the Gla.de mines in said contract; and lot No. 133 of the
.BICKS V. JENNINGS.
seventeenth district in Fulton county, Georgia.. For these lands the defendant Jennings agreud to pay the sum of $30,000, as follows: $10,000 on the delivery of deeds; $5,000 on July 1, 1877; $5,000 on January 1,1878; and the reo maining $10,000 at any time during the year 1878; and for that part of the purchase money which was unpaid, a mortgage was to be given on the Glade mines. When deeds were made by Henry 1rby to Jennings for those lands, in pursuance of this contract, the parties required that the purchase money should be divided into three parts-$10,000 for the Glade mines; and the like sum, each, for the Chapman mines, and for lot No. 133 in Fulton county. Three separate deeds were made-two for the Hall county lands, and one for lot 133 in Fulton county. Ten thousand dollars was paid by Jennings to Irby on the delivery of the deeds, and a mortgage given on the Hall county lands to secure the residue of the. purchase money, which was evidenced by two notes for $5,000 each; and one note for $10,000. The two $5,000 notes were paid at or before maturity, and a payment was made on the $10,000 note of $5,000, and all interest up to January 1, 1879. The defendant alleges that in the treaty for the purchase of these lands Henry Irby represented that the said lot 133, in Fulton county, contained a valuable silver mine, and was worth $15,000 or $20,000, and that upon the strength of these assurances he agreed to give, without any examination of the Fulton county lands, $30,000 for the three tracts of land, estimating lot 133 as worth at least $10,000, and believing it to be worth $15,000; and that he would not have purchased said lot 133, in Fulton county, or the said Hall <Jounty lands, but for the statements of said Henry Irby in reference to the value of said lot 133. He declares that he relied implicitly on the representations of Irby in relation to said lot 133, and had no opportunity to examine the same. Said lot was 'about 70 miles distant from the place where the contract of purchase was made. The defendant says that all the statements of said Irby in reference to the value of said lot 133 were false, and Irby knew them to be false when he made them; that, so far