Behn & Foster v. Willam H. Young & Co.

21 Ga. 207 | Ga. | 1857

By the Court.

McDonald, J.

delivering the opinion.

On the rule to show cause why an injunction should not be granted, the defendants- filed no answer, but objected for causes apparent on complainants’ bill; for the want of a proper affidavit to support it; and because copies of certain deeds mentioned in the bill were not attached thereto as exhibits. The counsel for the defendants, Behn & Foster, offered to transfer or to cause to be transferred to the complainants, by the plaintiff, the fi.fa. against Hampton and Green, provided the complainants would pay to them the amount due thereon. The money was not advanced and the transfer was not made. The Court granted the injunction and the counsel for the defendants excepted.

[1.] The objection predicated on the failure to attach, as exhibits to the bill, copies of the deeds to Paul E. Tarver and J. A. Davis, was not a good reply to the motion for an injunction, however available it might be, at the hearing, to exclude the deeds as evidence. The bill admitted all that the exhibits could have shown material to the defendants in opposing the motion, viz: the date of the conveyances as compared with the dates of the judgments and mortgages. What equity the complainants can lay claim to under the statements in their bill in reference to these conveyances, we shall presently consider.

[2.] The defendants insisted that the bill showed no equity, and no reason why Behn & Foster should be enjoined from collecting their money from the mortgage fund in Court. There is & fund in Court, subject to defendants’ judgment, brought there without their agency, sufficient to satisfy it and on which they can lay their hands, without trouble, expense or delay; and there is property subject to their judgment in the hands of third persons, claiming title thereto, against which it is the object of the bill to force them to go. According to the bill, the legal lien of Behn & Foster’s judgment binds that property, but the legal lien of no other creditor by judgment or mortgage reaches it, and for that reason, it is said, these creditors have two funds from which they can be satisfied, while the other creditors have but one, and that, therefore, they should be compelled to go against that property. A Court of Chancery , will not restrain a creditor from obtaining satisfaction from a fund in hand, and compel him to encounter delay, expense and risk, for the accommodation of other creditors who wish to force him to satisfy his judgment from other property. If, contrary to the supposition of the complaints, that property should be in the hands of bona fide purchasers for a valuable consideration, they might have a strong equity against creditors who allow a fund from which they had it in their power to be satisfied, to be appropriated to junior judgments and mortgages having no lien on that property.

If the bill be true, the property conveyed to Davis is subject to all the creditors of Hampton; for the conveyances are alleged to have been entirely voluntary and without any valuable consideration whatever. The same may be said of Mrs. Westfall’s claim, which is alleged to be founded on a pretended marriage contract which was never completed and which was abandoned and cancelled by the parties. Property thus held may be subjected to the payment of the debts of the party who has fraudulently aliened it, and Hampton’s simple creditors may reach it as well as his judgment creditors, by encountering the necessary expense, trouble and delay. We are now remarking on the condition of the property as made by complainants’ bill, which we are bound to assume as true'for the purposes of this judgment. Mr. Davis and Mrs. Westfall are not to be prejudiced by a proceeding to which they are not yet parties.

[3.] Tarver, according to the bill, is entitled as much to the protection of a Court of Chancery as the complainants who wish to send the execution against the property conveyed to him. The bonafides of his. dealings with Hampton is not assailed, and a Court of Chancery will not lend its aid against a bona fide purchaser. But if it would aid the complainants under certain circumstances, it would not aid them to the detriment of others who have as high claims as themselves-to its care and protection. It cannot- be assumed that either Davis or Mrs. Westfall will yield to Behn & Foster’s judgment, without a contest, the property which they hold from Hampton; and it may unqestionably be presumed that Tarver, who has as much equity as complainants, will not, without an effort, allow the judgment creditors, Behn & Foster, who can compel payment of their judgment from a fund in Court, to permit that fund to be otherwise applied, for the purppse of proceeding against his property. There must be both great expense and delay in the attempt to have satisfaction of Behn & Foster’s general judgment from the property held by either Westfall, Davis or Tarver, and a Court of Equity will not force them to encounter it.

[4.] The affidavit verifying the statements in the bill was made in Florida. The official character of the person administering the oath is not authenticated. It cannot be recognized here without,

[5.] During the argument of the motion for the injunction, the counsel for Behn & Foster, in open Court, proposed to the complainants that the plaintiffs would transfer to them the judgment against Hampton and Green on payment to them of the amount due thereon. This proposition came fully up to, and, perhaps, went beyond what the Court ought to decree for the complainants, if the case was to go to a hearing. If the proposition had been acceeded to, there would have been no necessity for the injunction; and while Behn & Foster would have received their money, the complainants might have used the execution for the protection of their rights under the junior mortgage to the same extent that Behn & Foster might have used it for the same purpose. The order of the Court distributing the .fund brought in under executions against Hampton, presented an obstacle to the accomplishment of that arrangement. That order was, and is yet, under the control of the Court, and might be so modified as to give effect to the proposition. There may be equities in favor of other parties, which might be affected by the transfer. If so, they ought to be protected, and we shall guard them in the instruction we shall give the Court below in the judgment of reversal we pronounce. The injunction will be retained until the judgment of this Court can be carried out.

Judgment reversed.