Stephens v. Beal

4 Ga. 319 | Ga. | 1848

By the Court.

Warner, J.

delivering the opinion.

This bill was filed by the complainant, for the purpose of setting aside a sale of certain negroes, mentioned in the record, on the ground of fraud.

The defendants, in the Court below, filed a general demurrer to the bill, for want of equity, which was overruled: whereupon the defendants excepted, and now assign the same for erior in this Court.

Two questions have been made in the argument by the plaintiffs in error, in support of the demurrer.

First, that the complainant was not entitled to the aid of a Court of Equity, until she had exhausted her legal remedies: Second, •that inasmuch as it appears on die face of the complainant’s bill, that she intermarried with Beall, who is dead, the defendants are not liable to account to the complainant, but to her deceased husband’s legal representative.

[1.] Where a judgment creditor seeks the aid of a Court of jEquity to reach the equitable interests of his debtor, there is no •doubt, biit he must show that he has pursued his legal remedies to every available extent. The objection here is, that there is no return -of nulla bona on the execution. By obtaining her judgment, the complainant acquired, a lien on the property of her debtor.' This bill is not filed for the purpose of reaching equitable assets, which are not subject to levy and sale ; but is filed for the purpose of removing an obstruction, which the complainant alleges has been fraudulently interposed to prevent a levy and sale of property of ithe defendant in the judgment, which is subject to be seized and sold under execution, in satisfaction of her judgment lien. In the latter class of cases, Courts of Equity will enter tain jurisdiction without a return on the execution of nulla bona. Beck vs. Burdett, 1 Paige’s Chan. Rep. 305. Planter’s Merchant’s Bank vs. Walker et al, 7 Alabama Rep. 946. Reese vs. Thurmond, decided by this Court at the last November Term ait Milledgeville.

[2.] With regard to the second question, the bill expressly alleges that the interest of the complainant in the subject matter of the suit, never was reduced to possession by her husband in his lifetime ; and being a chose in action, survives to her, and does not vest in the legal representative of her husband. The demurrer being a general one, going to the whole bill, we are of the opinion It was properly overruled by the Court below.

Therefore, let the judgment be affirmed.