Authur v. Bank of Ball Ground

146 Ga. 719 | Ga. | 1917

Evans, P. J.

(After stating the foregoing facts.) The plaintiff is a creditor without lien, and seeks to enjoin its debtors from' disposing of their property. The general rule is that a creditor without lien can not enjoin his debtor from the free disposal of his property. Civil Code (1910), § 5495. Equity recognizes certain exceptions to the general rule, growing out of the special circumstances of the case; and the plaintiff seeks to bring its case within the operation of some such exception. According to the verified petition, the defendants owned a tract of land encumbered with a security deed, and in consideration of an additional loan to them by the bank they agreed to secure their existing indebtedness and the new loan by a transfer of a bond for title which the holder of the security deed had made to them, and by a mortgage on their personal property. The defendants deposited the bond for title, but afterwards refused .to execute the transfer or give the mortgage. After promising to give the security, the defendants paid up the debt of the holder of the security deed by borrowing money from a third person and securing that debt by deed, taking a bond to themselves. Neither of the hqlders of the security deeds are charged with knowledge of the transaction of the bank with the defendants, or with collusion with the defendants, and no attempt is made by the bank to assert any claim against them. The petition charges, on information and belief, that the defendants are trying to dispose of their property; but no specific facts are alleged, and the evidence on the interlocutory hearing did not remotely hint of any such intention on the part of the defendants. It is also charged in the petition that the land described, and the personal property not described, constitute their entire property; but the value of this property is neither alleged nor proved. No relief is asked with respect to the transfer of the bond for title in the bank’s possession. The case of the bank is that of an unsecured creditor who seeks to enjoin the debtors from transferring or encumbering their property, because of a breach of a promise to give a specific security for the loan of money. If the bank’s contention of the transaction be the truth of the case, the defendants have acted in bad faith; but no sufficient reason is presented for the interposition of a court of equity to enjoin the defendants in the free disposal of their property. Johnson v. Farnum, 56 Ga. 144; Dortic v. Dugas, 52 Ga. 231.

Judgment reversed.

All the Justices concur.