14 Ga. 216 | Ga. | 1853
By the Court.
delivering the opinion.
We shall see in the further progress of this discussion, that Chewning gained nothing by pushing on, in the language of the Court, and getting a judgment. It is a sound proposition, that if two have equal equities, and one has also a legal advantage, he will prevail on his legal right. This principle however, has no application to the case; because as I have undertaken to show, Chewning has no equity, much less an equal equity, with Webb in this land.
In England it prevails against the vendee, his heirs — volunteers under him — against purchasers with notice and assignees in bankruptcy. It is not. carried farther by any decisions there. I think that there is no case in the English books, in which the question as to the rights of creditors, was made and decided. Mr. Sugden, it is true, places creditors, claiming under a conveyance, in the same situation with creditors under a commission in bankruptcy. His text is in the following words : “ Creditors claiming under a conveyance from the piuchaser, are bound in like manner as assignees, because they stand in the same situation as creditors under a commission.” (Sugden on Vendors, 3 vol. p. 142. 6 Am. edition.) According to Mr. Sugden then, the lien prevails against creditors even without notice, who hold a conveyance from the purchaser; for it prevails against assignees under a commission, with or without notice.
This is the authority of a name as eminent as any among the Law writers of his day; but it is not the authority of Westminster Hall or of the British Chancery. Several cases are referred to by Mr. Sugden in support of his text. The authority of this dictum was shaken; indeed, demolished by the Supreme Court of the United States, in Bailey vs. Greenleaf. (7. Wheat., 46.) Ch. J. Marshall in the opinion in that cause, reviews it with his incomparable strength of reasoning and accuracy of learning, and demonstrates that it has no foundation in principle or in authority. According to his review of the cases in England and America, there was in his day no single case, here or there, to sustain the lien against creditors. And
The former occupy the position of purchasers in Equity. (7 Wheat, 46. Mitford vs. Mitford 9th Vesey Jun.)
Prom those considerations, we feel at liberty to say that we are not constrained by British authority, to extend the vendor’s equity over the rights of creditors. In this country the decisions are variant. The Supreme Court of the United States, in Bailey vs. Greenleaf, refused to enforce it against antecedent creditors, holding a conveyance from the vendee. That was a conveyance of the estate to trustees for the payment of creditors. Ch. J. Marshall, however, insists with great force of argument, that all creditors ought to be protected; and his decision and reasoning received the sanction of the next greatest legal mind known to our annals: Ch. J. Kent. (4 Kent’s Com. 154 note a.) That case has been followed in Roberts vs. Silasbury 3 Gill & Johns 425. In Garm. vs. Chester, 5 Yerger’s Tenn. Reps’ 205. In Moore et al. vs. Holcomb et al. 3 Leigh 597, 600.) Rut was condemned in Swelns vs. Williams, 3 Wheat 493, and qualified by the Vice Chancellor in Shirley vs. The Sugar Refinery, 2 Edw. V. Ch. Reps. 511.
In some of the States the doctrine of the English Chancery,
I proceed to say, that it has been held not to prevail against a bona fide mortgagee without notice, upon the ground that he is regarded in Equity as a purchaser. (Duval vs. Bibb, 4 H. & Munf. 113, 120. Wood vs. Bank of Kentucky 5th Monroe, 194, 195. Clarke vs. Hunt, 3 J. J. Marshall, 553, 557. 5 Yerger, 205, 209.)
In Mississippi, it was held that it cannot prevail against creditors claiming under a deed of trust made for their benefit. (5 Smedes & Mash. 702, 710.)
So also, it has been decided, that itis subordinate to the rights of judgment creditors and purchasers at their sales. (Johnson vs. Cawthorn, 1 Dev. & Batte, 32, 35. Harper vs. Williams, Idem. 379. Roberts vs. Rose et al. 2 Humph. 145, 147. Aldridge vs. Dunn, 7 Blackf. 249, 250.)
Erom these recitals it is manifest first, that in the United States, the tendency of the authorities is in favor of purchasers ; and that secondly, there is no uniform rule as to the rights of creditors against the lien to be derived from the American books. In this condition of things, we are to make a rule for the guidance of our Courts, until such time as the Legislature may see fit to take the matter in hand. And in so doing, we are influenced by the principles upon which we understand the established doctrine in England is based, and by the policy of our own registration Laws. As this Court is bound by the settled doctrino of the British Chancery Courts, we hold our
The counsel (Major Miller) for the defendants in error, made the point that the Statutory lien of Chewning’s judgment would, aside from any equitable consideration, prevail over Webb’s equity. He argues that by force of our Law, which
Let the judgment be reversed.