Manheim v. Claflin & Co.

81 Ga. 129 | Ga. | 1888

Bleckley, Chief Justice.

1. No one can douht that foreclosing a mortgage on personalty, under §3971 of the code, is a proceeding at law; and §3979(a) gives the mortgagee the option of foreclosing in equity. Here the mortgagees, Claflin & Co., took the legal remedy in preference to the equitable, and then, without the least necessity for it that we can see, invoked the aid of equity to enable them to realize their money out of the goods covered by their mortgage. This they did solely because there were prior fraudulent mortgages in favor of other persons covering the same goods, which mortgages had already been foreclosed and levies made. But §3979 of the code provides that “ if any creditor of the mortgager, whether his debt be in judgment or not, desires to contest the validity or fairness of the mortgage lien or debt, he may make an affidavit of the grounds upon which he relies to defeat such mortgage, and upon filing the same with the levying officer, together with a bond and good security, payable to the mortgagee, and conditioned to pay all costs and damages incurred by the delay, if the issue be found against the contestant, it shall be the duty of such officer to return the same to the court to which the mortgage^, fa. is made returnable, to be tried in the manner prescribed above for an affidavit of illegality by the mortgager.” Here is a specific legal remedy by which to attack the fraudulent mortgages, and the bill does not explain why it was not used, or why, if used, it would not be efficacious. Again, suppose it would not be so, and that for some good reason an injunction, the appointment of a receiver, etc. would be needful, there would bo no occasion for changing forum and resorting to a court of equity, since by the act of October 16th, 1885, (acts 1884-5, p. 36,) a court of law is just as competent to supply all such aid and render it effectual. Moreover, since the act of 1887, (acts 1887, p. 64,) any equitable relief appropriate to such a case, whether by injunction receiver or otherwise, can be obtained by petition addressed to the superior court, and as the act Avas designed to establish uniformity, by that mode only. Thus the code, §3979, the act of 1885 and the act of 1887, all point to the superior court, the one to which all the mortgage Ji.fas., including that in favor of Claflin & Co., Avere returnable, as a court competent to settle every question of CA'ery kind, legal or equitable, which has arisen or can arise in this litigation, a court competent also to supply all the machinery requisite to securing in behalf of those entitled to them all the fruits of the controversy. Why, then, should Claflin & Co. turn aside and enter, or try to enter, another forum, a technical court of equity ?

2. As to the goods in another store, those not included in the mortgages and which were sold fraudulently by Manheim, the debtor, they were subject to attachment under section 3297 of the code. The statute embraced in that section was passed for just such a case, a case in Ayhieli the creditors have no judgment and no lien by contract, and the bill suggests no obstacle to the use of the attachment remedy. If these goods Avere fraudulently purchased by Manheim, from the,se creditors, Clafllin & Co., that is, by committing a fraud upon them, they had a right to rescind their contract of sale, or pray for a rescission and reclaim the goods as their own, but this course they have not taken. They proceed against the goods as the property of Manheim, their debtor, and do not seek to defeat his title but only the title which he has passed, or attempted to pass, into his fraudulent or pretended vendee. This they could do as well by attachment as by bill and receiver,’ even were equity jurisdiction exercisable by bill still in full vigor, as full vigor as it ever was ; but we apprehend that did these creditors need equitable relief on this branch of their case, they would now have to obtain it, not by bill in a technical court of equity, but by petition, according to the act of 1887, to the superior court. On such a petition that court could act as a court of equity, or as a court of law, or as both; that is, it could and would act as the superior court, simply using all the remedies and remedial.machinery appropriate to the case, and administering all the relief, legal and equitable, to which the respective parties were entitled. A case in the superior court on such a petition might have both feet in equity or both in law, or one in equity and the other in law. But with few if any exceptions, the superior 'court is no longer a technical court of equity, the court whose jurisdiction and intervention this bill invokes; for most cases it is more, a court of lato and equity. To reach it as such, however, it has tobe approached not by bill but by petition, and the defendant has to be warned to appear not by subpoena but by process. As the act is so plain, and its provisions so simple, there seems to be no reason why it should not be complied with, and the scheme of uniformity which it seeks to establish be observed. As this is the first time we have had occasion to apply it, we shall start by applying it correctly, and not attempt to sacrifice the law in order to save the case.

. The chancellor erred in granting an injunction and appointing a receiver, and in all the rest of his order.

Judgment reversed.