Lavender v. Thomas

18 Ga. 668 | Ga. | 1855

By the Court.

Benning, J.

delivering the opinion.

[1.] This Court has in two cases decided that the Act of 1818, to prevent assignments to some creditors in preference to others, does not affect mortgages made to secure a just debt. (Lee and others vs. Brown and others, 7 Ga. R. 276. Davis and others vs. Anderson § Bro. 1 Kelly, 176.) To these decisions I give my assent; but it is not without much difficulty that I do so. There is certainly ambiguity in the .words of the Act.

The Act being interpreted by these decisions, it follows that the mere execution of the mortgage to Hindsman and Sergeant by Lavender, as stated in the bill, was not a violation of the Act.

The bill, however, states other objections to these mortgages.

To the mortgage of Ilindsman, the objection stated is, that the. debt secured by the mortgage was not bona fide real or substantial, but was made, or pretended to be made, after the arrest of Lavender, and while he was in prison, for the “ express purpose of covering up, concealing, cloaking and screen, ing the” house and lot mortgaged, from the debt of Thomas; “that if the debt to ilindsman ever had any real bona fide existence, it was in a large note or notes above the jurisdiction of a Justice of the Peace; and that after the imprison,ment of Lavender, he and Ilindsman, for the express object, purpose and deliberate intent to cover up and conceal all the property of the said Lavender from orator Thomas’ claim, combined together to defeat and defraud orator Thomas; and for that purpose, split up and severed the said large note or notes, and then gave the mortgage.”

This statement is a very uncertain one. The former part of it, however, the part alleging the non-existence of any real debt, has equity in it; and although this part may be in the .alternative with the latter part, yet, as under the late Act of Amendments it is amendable, as a matter of course, we will only say that the Court below ought to require it to be amended; and ought, if it is not amended, to dismiss the bill, as to Hindsman.

For in the alternate part of the statement, there is, as it -seems to us, no equity. Wo are not aware of any law which prevents a debtor, unable to pay all his creditors, from “ splitting up” a large debt into small ones, so as to enable the 'holder of that debt to obtain judgment in a Justice’s Court •sooner than the other creditors who have to sue in the higher ‘Courts may be able to obtain judgments on their debts, and thereby, to enable that debt to get a preference over these. The Act aforesaid, of 1818, is not such a law. That prohibits assignments, and assignments only. Equity does not forbid an insolvent debtor to prefer one of his creditors to another. (Stor. Eq. §370.) And then, the Act of 1801, amending the Judiciary Acts, as far as they relate to Justice’s Courts, gives its express sanction to such a division or '“splitting up” of a large debt as shall bring the debt within ihe jurisdiction of a Justice’s Court.

'[2.] The mere fact, then, that Ilindsman’s debt was “ split up,” so as to be brought within the jurisdiction of a Justice’s ■Court, was not a fact in which there was, in the opinion of this Court, any equity.

The objections to the other mortgage, that of Lavender to Sargeant, it is needless to consider, as the Court sustained the demurrer as to Sargeant.

[3.] This bill was not multifarious. All the defendants had an interest in the fund in thg hands of the Sheriff. The object of the bill was to get that fund applied to the payment of the complainant’s' debts, in preference to the debts -of any of the defendants. The manner in which this fund was to be applied, was a matter that concerned all of the defendants. If so, the bill was not multifarious. Booth and another vs. Stamper, (10 Ga. R. 116.)

Yisscher was a proper party plaintiff to the bill. One of the objects of the bill was to compel Lavender to perform his contract of purchase of the mill, &c. Yisscher was joint owner of the mill, &c. with Thomas when Thomas sold them to Lavender. The bill containing a prayer that Lavender, the vendee, should perform what was to be done on his side of the contract, Avould have, also, to contain an offer by his vendors to perform what was to be done on their side. That there might be such an offer, Yisscher, who was owner <of the mills, &c. jointly with Thomas, and one of the vendors, had to be a party to the bill. Yisscher was a party to the contract for the specific performance of which the bill prayed.

Was the Superior Court of Houston County, the Court which had jurisdiction of the case ?

The defendants, with the exception of Lavender, resided in other counties than Houston, and ho resided in Texas.

The great object of the bill is, to have the fund which is in the hands of the Sheriff of Houston applied in a particular way. It is true that no subpoena is prayed against the Sheriff of that county ; but the omission of such a prayer against him may have been an inadvertence. A decree is prayed against the fund in his hands. At all events, he may still be added as a party.

Considering the bill, then, as if he were a party to it. We answer the question, by saying that the Court in Houston was the Court which had jurisdiction of this case and of the defendants, although most of them resided, not in Houston, but in other counties.

In Gilbert vs. Hardwick, (3 Kelly, 575,) this Court say, that “Equity cases are not embraced in the term ‘civil cases,’ as used in sec. 1, art. 3 of the Constitution.” In Rice vs. Tarver, (4 Ga. R. 582,) they re-affirm this. In the cases of Jordan vs. Jordan and others, 12 Ga. R. 78, 15 Ga. R. 76, 16 Ga. R. 446,) there is nothing said by the Qourt, adverse to this position. In the last of these cases I, for myself, express a doubt as to whether the expression, “civil cases,” used in the Constitution,, does not include Equity cases. I still entertain that doubt, but I cannot, upon a doubt, dissent from the majority of the Court, supported, as they are, by two decisions of this Court, and many decisions, (as I am aware,) of the- Superior Courts.

[5.] Still, although the words, “ civil cases” may not, as used in the Constitution,, include Equity cases, yet, under the maxim that Equity follows' the Law, Equity cases will generally have to be brought in that county only in which the defendant resides. There may, however, be Equity cases in which it will be impossible to observe the maxim — as cases in which more parties than one are necessary to any decree, and those parties, some of whom reside in one county and some in another. And this case is such a one; for in this case no decree, disposing of the fund in the hands of the Sheriff, can be rendered, unless the case in which it shall be rendered shall be such a case as shall bring some one or more of the persons interested in the fund out of his county, into the county of some other of the persons interested in it.

That.being so, the best county in which to bring this suit, was the county in which the suit was brought. In that county resided the person who had the fund in his hands, and who. was Sheriff of the county, and who, as Sheriff of the county, held the fund. To require a Sheriff to leave his county to answer a suit, is to require him, for a time, to lay aside his public as well as his private business; and that time may happen to be one when a Court of his own county is sitting, or one which, for some other cause, calls imperiously for his presence in his own county.

The only objection which the bill states to the demand off Carver & Johnson is, that it had Ifcen “ split up” into smaller demands, that it might be brought within the jurisdiction off a Justice’s Court. This, as we have already seen, was not a good objection.

We think, therefore, that the Court should have sustained, the demurrer, so far as Carver & Johnson were concerned.

And this disposes of the case.