113 Ga. 851 | Ga. | 1901
The petition set forth a cause of action, and no sufficient reason was stated in the demurrer either of Fisher or his wife why the injunction should not have been granted. It was distinctly provided in the agreement which was a part of the verdict and judgment rendered against Fisher that “ if, after the last instalment becomes due as aforesaid, there shall be any balance due on said indebtedness, plaintiffs may levy and sell whatever remains unsold of said lands, or any other property of said defendant.” The last instalment fell due in 1899, and was not paid. The present petition was filed in 1901, at which time, under the very terms of the agreement, Graham had a right to proceed to sell for the purpose of paying the debt due him all of the property described in his security deed, in any manner authorized by law, provided the sale of the whole of it was necessary for the purpose of paying his-debt. Under the allegations in the petition it is necessary to sell all of the lands still unsold, and it certainly does not lie in the mouth of Fisher to say that Graham shall not proceed to collect his debt-in the manner authorized by law, when, under the averments in the petition, he and his wife have interposed every obstacle within their
It is contended that the court erred in granting an injunction, and appointing a receiver, because the equitable petition of the plaintiff was one merely in aid of his levy, that to this levy an affidavit of illegality had been filed, which was overruled at the trial, and that a bill of exceptions was pending in this court, assigning error upon the judgment overruling the illegality,,and that so long as the case was undisposed of the plaintiff in execution had no right to proceed with any other remedy. We do not think this position is well taken. The fact that an affidavit of illegality has been overruled and a bill of exceptions filed carrying the case to the Supreme Court, where there will necessarily be delay in determining the question, instead of being a reason why equity would not interfere in behalf of the plaintiff, is itself a good reason for its interference by the granting of an injunction and appointing a receiver, in view of the allegations made in the petition. It is also claimed that the plaintiff in execution is estopped from claiming that the value of the land is less than the amount of the debt, by the stipulation in the agreement that the defendant in execution should have a right to sell portions of the land at private sale at four dollars per acre,the price so fixed being, as contended, the true value of the land, and both parties being bound by the stipulation that the land is worth that much. Even if the parties were bound by this stipulation at the time the agreement was entered into, and could not say that the land was worth less than the amount so fixed, they were not bound by that stipulation certainly after the last instalment became due and remained unpaid. At that time, as has heretofore been shown, the plaintiff in execution was entitled to pursue any remedy to collect his debt which the law provided. While the evidence on the question of the insolvency of Fisher was directly conflicting, we think that there was evidence from which the judge could find that he was insolvent within the meaning of the rule laid down' in Cohen v. Parish, 100 Ga. 338, which was, in substance, that, if the value of the person’s property •is not sufficient to discharge all of his debts, such person is insolvent. It is true that some of the witnesses for the plaintiff based their opinion on the value of the property upon what it would
Judgment affirmed.