Field v. Jones

11 Ga. 418 | Ga. | 1852

By the Court.

Nisbet, J.

delivering the opinion.

[1.] This bill alleges that the complainant Jones is a judgment creditor of the Life Insurance and Trust Company, a corporation located in Florida; that this corporation is owner pf certain real estate in this State, (the legal title to which is in one Fields) subject to its debts ; that a levy of his judgments has been made upon this property, and a claim interposed by Fields, which claim is still pending; that upon a former bill filed, one Schley was appointed receiver to collect and hold the rents of this property, and that as such receiver he did collect, and now holds a large sum of money; that the former bill was dismissed on demurrer; that if the property is ultimately subjected as the property of the Life Insurance and Trust Company, the full amount which it will bring at Sheriffs sale, will not be more than sufficient to satisfy other judgments older than his, outstanding against that Company, and that unless this fund in the hands of the receiver is held up, to be applied to his judgments, he is in danger of losing his debt; that said Company has no property other than that above referred to,- within the jurisdiction; that Fields himself resides without the jurisdiction of the State, and has sold his interest in said property to Messrs. Dougherty, Iverson and Hargrave, since the rendition of his judgments, who are making every effort to get this fund out of the hands of Schley, the receiver. It prays that Schley be enjoined from paying the money in his hands to these assignees of Fields, and that a receiver be appointed to hold it and collect the future rents, subject to the order of the Court. Upon applying for a sanction to this bill, it was resisted by the assignees of Fields. The Judge sanctioned the bill upon-terms, requiring the money to be paid to the assignees of Field's, upon their giving bond and security to pay to the complainant, Jones,, all the rents, issues and profits of the property, from the- time of Jones’ levy, until it was finally sold, if the property should be-found subject to Jones’ judgments, on the final trial of the claim.. To this ruling, both parties excepted and brought writs of errorj, which, by order of this Court, upon consent of the parties, are-now considered together. Col. Jones insists that the Court erred in ordering the money to be paid to Messrs. Dougherty, Iverson and Hargrave at all — holding that his bill ought to have been sanctioned unconditionally, according to its prayer — whilst they insist, that the Court erred in sanctioning the bill at all, andl that they were entitled to the money unconditionally. For the better understanding of this case, I refer to the case of George-Fields and others vs. Seaborn Jones and John Schley, immediately preceding this. This fund is the same that Messrs. Dougherty, Iverson and Hargraves sought to be paid to them in that case, and which Jones and Schley resisted, upon the ground of a pending garnishment in their favor against the receiver. Then we held that it was the duty of the Court to order the-money to be paid to Fields, or his assignees, as whose money it was, under the dismissed bill originally taken, and impounded in the hands of Mr. Schley the receiver; unless withheld from so doing by the claim of some party properly brought to the cognizance of the Chancellor. The service oí the garnishment, we held insufficient to restrain him from so doing. We held that this fund was in the custody of the Court, and that any person claiming an interest therein could be heard, pm interesse suo, as before the Master in England, and that when heard, the Chancellor would pass such order as would comport with the interests of all parties. The bill now before us is not, as was claimed for it in the argument, a creditor’s bill, seeking the appropriation of a fund to the satisfaction of a debt. It asks no such appropriation. It invokes the aid of Chancery to hold up a fund, upon which the complainant will have a right to go for the satisfaction of his judgments, if upon the final decision of the claim at Law, the property out of which it has issued as rents ami profits, is found subject It:seeks 1o accomplish this, by restraining the present receiver from paying it over, and by the appointment of another receiver to hold it until the termination of ¿he litigation at Law.

As a basis for these demands, it exhibits judgments in favor of the corhplainant upon attachment — a levy upon the property, out of which this money issued — a pending claim at Law by Fields — the fact ol' the non-residence of the corporation, who is defendant in his judgments- — the further fact that there is no other property to be reached within- the jurisdiction, and that older judgments are outstanding against the corporation, in amount large enough to cover the full value oí the property itself, and that efforts are making; to cause this fund to be paid over to purchasers of the same from Fields, whose title is junior to his judgments. From the case made, the complainant has judgment levies which may attach upon the property, and if so, he will have a legal right of satisfaction out of the proceeds of that property now in the hands of the Court, and the payment of which will be endangered, unless those proceeds are retained. It is a case in which Equity must give relief, or justice and right be violated. No legal remedy is now at the command of the complainant. Garnishment will not, as already decided, reach the case; and conceding that if this money is paid to the assignees of Field, an action would lie in his favor- against them, in the event that the property is made subject to Lis judgments, yet that is not a present remedy, and may not Him be a complete remedy. Resides Equity having jurisdiction over this fund now, will not, under these circumstances, faille exercise its preventive power, and thus avoid future suits. The right to this money, as between the complainant and the assignees of Fields, depends upon the title to the property in litigation at Law, and upon principles qma tir,iel. A Court of Equity will, having the fund, reserve it, subject to its own future order. The injunction is only necessary to prevent i1r. passing wrongfully, before the Court acts, out of the hands of its oíücer. (See Stor's Eq. lu., §907 ) Our judgment is that the judgment of dm Court pf-io'/.be reversed — that a receiver be appointed to take and hold the amount be is hereby authorized to receive, ¡md to collect ami hold the fulure rents, issues and profits of the properly; and that so much of the fund now in the hands of Mr. Schley, as, together with the future income of the property, will be, in the judgment of the Chancellor, sufficient to pay the principal ¡md interest due on the judgments on ¡líiachmont in favor of Col. Jones, at the determiniior' of the claim esse, and also his costs thereon, be paid by Mr. Schley to the newly appointed receiver, and that the balance in the hands oí Mr. Schley be paid by him unconditionally to Messrs. jDovghcriy, Iverson and Hargrave, the assignees oi Fields.