| Ga. | Dec 15, 1915
Lead Opinion
(After stating the foregoing facts.) The plaintiff does not allege sufficient facts to justify an equitable foreclosure of its mortgage, or an equitable intervention against the wife’s processes to collect the amount claimed from her husband as due for rent and supplies. Mrs. Ford foreclosed a distress warrant and a lien for supplies against her husband, and these processes were levied by the sheriff of the county. The plaintiff has a mortgage on some of the crops. Instead of foreclosing its mortgage, and placing the mortgage fi. fa. with the levying officer, it resorts to equity. If it had foreclosed its mortgage and the crop had been sold by the sheriff, the respective rights of the claimants of the fund could have been expeditiously and completely settled in a rule to distribute the fund. Smith v. McPherson, 78 Ga. 84. Why attempt a resort to equity? The facts do not show any necessity for an equitable foreclosure of its mortgage. If the relation of landlord and tenant between the husband and wife be collusive and not real, such fact could be shown in a proceeding to distribute the money, so as to give priority to the plaintiff’s mortgage. Any disposition or despoliation of the mortgaged property may be prevented by the plaintiff’s foreclosure of its mortgage. The allegation that Walter Ford worked the farm with two croppers is not sufficient to sustain the petition on the theory
Dissenting Opinion
dissenting. I can not concur in holding that the petition in this case was demurrable. It is declared by the Civil Code (1910), § 3305: “The holder of any mortgage of real or personal property, or both, . . shall be at liberty to foreclose such mortgage in equity according to the practice of the courts in equitable proceedings, as well as by the methods prescribed in the Code.” On the face of this statute it would seem to give the holder of a mortgage the privilege of foreclosing in equity, or by equitable procedure. But it has been held that foreclosure in equity should not be resorted to where the remedy of foreclosure by ordinary statutory procedure furnishes complete and adequate relief. Tinder the facts alleged in the present case, I do not think that it can be said that the ordinary summary foreclosure under the Code furnishes as complete and adequate relief as a foreclosure in equity. It was alleged, in effect, that there was a fraudulent collusion between a husband and wife, by which he was allowed to hold himself out to the world as the owner of the land until he had incurred debts, and then to develop into a -mere tenant of his wife, owing rent, for which she could proceed by summary process, when in fact there neyer was any relation of landlord and tenant between them, — in plain English, a trap to catch innocent outsiders, and yet to hold the property and its crops in the hands or control of the husband and wife. Fraud has always been an especial ground for seeking equitable relief. I do not think it any answer to this to say that the creditor might foreclose his mortgage by summary process under the statute, and, after a sale of the property by the sheriff, might then contest for the fund on a money rule. The only reason why he could make such a contest is that a money rule is a quasi-equitable proceeding. It does not seem to me to be a valid objection to proceeding at once by equitable methods to say that the plaintiff might first proceed by an ordinary foreclosure in equity and afterwards supplement this by a quasi-equitable proceeding in a money rule. I do not perceive how the fact that a man might have the right to two proceedings, one a proceeding at law to get the money into court, and another a quasi-equitable proceeding to attack the claims of the wife and get it out of court, furnishes any objection to having an equitable proceeding at the start, bringing, in all of the questions and settling the entire matter in one action instead of in
The fact that it appears that the plaintiff’s mortgage covers the crops on some land additional to that claimed to have been rented, and that the exact amount of crops upon those lands is not shown, is not alone sufficient to make his equitable action subject to general demurrer. Nor was there any demurrer specifically raising the point that the value of the additional crops covered by the mortgage was not stated. The holder of the mortgage had a right to subject the entire security to the payment of his debt. The husband and wife, if they indulged in a fraudulent and collusive scheme as alleged in the petition, could not thereby say to the creditor: you must exhaust other property covered by your mortgage before unearthing and destroying the results of our fraud. Even if the property covered by the mortgage is on its face of more value than the amount of the mortgage, this does not affect the fact that the mortgagee has a right to look to all of it. Nor does it furnish a ground of demurrer to the alleged colluding husband and wife that the mortgagee might have other property covered by his mortgage, to which he could look, and leave them in undisturbed enjoyment of the results of their alleged fraud. I am unable to see that this petition was subject to demurrer, and I am therefore regretfully compelled to dissent from the opinion of the majority.
The question of what expenses shall be incurred in connection with a receivership is not before us on this demurrer. That is a question arising when the court is appealed to to allow fees or other expenses, and this court can not look through the allegations of a petition like the one before us, on the demurrer which is made, in order to conjecture that there may be improper or excessive fees allowed by the trial court, and therefore dismiss the case, otherwise proper, and showing no such facts.