Price v. Cutts

29 Ga. 142 | Ga. | 1859

— Stephens J.

By the Court.

delivering the opinion.

1st. The case made by the original bill, so far as the defendant, William M. Brown, is concerned, is confessedly stripped of all its equity by the answer of Brown.„ It was so conceded in the argument, and the complainant relied only-on his amended bill, setting up a mortgage which he alleges Avas, by agreement between him and George A. Brown, to have been executed by the said George A. at the time when the complainant’s demand was contracted, but which /ailed of execution through some “ inadvertence.” There was a demurrer to this amended bill, and the question is, whether it is a good bill. Will equity set up this agreement against other creditors of George A. Brown ? We think not. Equity will reform an instrument, but it will not make one. To make a’case for relief, there must be an execution of something. Where the wrong thing is executed by mistake or fraud equity will, on sufficient proof, substitute the thing, which was really intended by the parties, in place of that which was executed by mistake or fraud. But to set up a contract where no execution of anything has been had, would be to make a contract, and not to reform one. Again, “ inadvertence,” without even saying whose inadvertence it was, is a new ground for equitable interposition. But, again, upon the principle that equity considers that which ought to have been done, as having been done from the beginning, ■the case which the complainant makes is that of an actual mortgage, (the aid of equity being sought merely to furnish and perpetuate the evidence of that which has existed all the time) and it cannot be maintained against subsequent judgments, as is asked to be done here, because it was not recorded within three months. The statute of 1827, Cobb’s Dig. page 172 and sec. 4, is express that no mortgage', unless recorded -within three months, shall prevail against any judgment obtained before the foreclosure of the mortgage. There was. no foreclosure here, and indeed could not be. it was attempted in the argument to escape from this reasoning by saying this is not a mortgage, but, an agreement for a mortgage, creating not a lien by mortgage, but a mere equitable ■lien. Cases were read to show that such an equitable lien is created by an agreement to execute a mortgage, but all these were cases where the mortgage was to be executed at éome future day, not where the mortgage was to be had in presentí, but failed by mere want of execution. There is a difference, as it seems to me, between such a contract as equity will set up as a mortgage, treating it as having been a mortgage from the beginning, after it is set up on the one hand, and on the other hand a mere agreement for a mortgage at a future time. The latter cannot be enforced, as a mortgage, for equity will not compel parties to form a written contract, merely because they have verbally agreed to do so without ever having attempted it. In the one case you have an actual mortgage existing from the beginning, not properly evidenced, to be sure, till equity, by its reforming hand, supplies the exact evidence, but still when so evidenced at last, relating back to the beginning, and counting as a mortgage, a legal statutory lien, and not a mere equitable lien. Now the case made by the complainant if it is anything, is the case of a mortgage, and it is not good against the judgment creditors, for want of record. The case of Wall vs. Arrington et al. in 13th Ga. Rep., has been invoked as an authority for setting up this agreement as a mortgage. In that case a mortgage which had been executed, and duly recorded, was allowed to be corrected against judgment creditors, by striking out No. 109, and inserting No. 112; but there the number of the land was only a part of its description; the land really mortgaged was that which Wall had notoriously possessed for many years, and that was No. 112. The Judge, in that case, expressly says, “ it was lot No. 112, and not lot No. 109, that was mortgaged;” thus treating the number as only a part of the description to be corrected by reference to other circumstances and marks of identity; and in that case the effect of our statute requiring mortgages to be recorded, was manifestly not discussed nor considered, and no case can be an authority for a doctrine not at all considered in it. The case of Printup vs. Johnson, 19 Ga. Rep., has also been urged'as an authority for the complainant. All that need be said of that case is, that it is no case of a mortgage. There are different kinds of liens, some legal and some equitable, some needing record, and others not; but we are dealing with a mortgage, and to hold such a lien good without record, would be to set the statute at defiance. The original bill having been fully met by the answer, and the amended bill_being bad, we hold that the Court was right in dissolving the injunction as to William M. Brown. This is the only error of which the plaintiff in error complains, but by agreement two other parties were allowed to assign error.

2d. The firm of Brown & Carmichael assign as error under this agreement, the refusal of the Court to dissolve the injunction as to them.

We think the Court was right in this refusal. Their answer does not swear off the equity of the original bill, as to them, but on the contrary, in effect admits the partnership charged, and that the debt which they were seeking to collect out of George A. Brown, was not his individual debt, but one in which they were jointly liable, and equally interested with him. Their attachment had a precedence over that of the complainant by reason of its earlier levy, and it ought to be restrained from using that advantage, unless it is a bona fide claim. The injunction was rightly retained as to it.

Sd. But William M. Brown also assigns error in the distribution of the fund which was turned loose by the dissolution of the injunction, and in refusing him compensation and attorney’s fees, &c. He claims that he should have been allowed to apply the fund, which he had collected from the books, notes, &c., of George A. Brown, as a credit upon his younger attachment instead of upon his older fi. fas. We think not. To be sure there was no lien upon this fund, and the debtor, George Brown, might have applied it as he pleased, but he did not apply it all. The creditor also might have applied it, in the absence of any application of it by the debtor, but he too had failed to make any application of the fund, when equity laid its hand upon it. Equity having got possession of it, proceeded to apply it to the oldest liens first, and that was only following the law.

4th. He also complains that the Court erred in refusing him compensation for his services in making a crop with the negroes levied on. He claims in his answer, that he was acting as agent of the Sheriff in making this crop, and so he was. But being agent for the Sheriff, he must stand in the Sheriff’s shoes, and we are unwilling to lay down any rule of compensation for the Sheriff, except that prescribed by statute, that is to say his fees for keeping the negroes, &c. But in this case the negroes were kept out of their own labor, the result of the crop brought into Court, being the net proceeds after taking out all expenses, including the expense of keeping the negroes. We think there was no error in this particular.

5th. He also complains that the Court erred in refusing him compensation for his services and attorney’s fees for services — - to the estate of George Brown. We do not think he was entitled to compensation or attorney’s fees, except for services in collecting the fund from the notes, books, &c. But for his services in collecting this fund which was for the benefit of all the creditors, we do think he was entitled to reasonable compensation, and to reasonable attorney’s fees paid out in the collection of that fund. An. allowance for attorney’s fees for attending to the general interest of George Brown, was properly refused. Compensation ought to be allowed only for those services, which proved fruitful to creditors. As all compensation was' refused, we are constrained to reverse the judgment, but it is reversed only on this last assignment of error, and reversed only to the extent stated.

Judgment reversed.