56 Ga. 666 | Ga. | 1876
This case rests on the following state of facts : On the 8 th day of October, 1863, John R. Worrill executed to Barney Parker his mortgage deed of said date, to secure the payment of two promissory notes, which came due respectively on the 1st day of January, 1864 and 1865, which notes were given fora tract or settlement of land in Sumter county, for the sum of $4,000 00 each, making in the aggregate $8,000 00, which were assigned by said Parker to E. M. Coker, in the year 1866. At the October term of the superior court of said county, Coker instituted his suit for the foreclosure of said mortgage, which was defended by Worrill, and at the October term of said court, 1871, Coker recovered his judgment of foreclosure for the principal of said notes. Worrill made a motion for new trial, which was overruled, and excepted to the judgment of the court overruling said motion, which was carried to the supreme court by writ of error, etc.
About the time the bill of exceptions was filed in the clerk’s office of the court below, Coker sued out a mortgage fi. fa. founded on said judgment of foreclosure, had said land levied upon on the 19th day of December, 1871, which levy was superseded by Worrill, at the time of filing said bill of exceptions.
While said cause was pending in the supreme court, said Coker and Worrill compromised said case, which was entered into on the 1st day of June, 1872, the terms of which compromise were put in writing and signed by said Worrill and Coker, which is as follows, to-wit:
“ Georgia — Sumter County :
" This is evidence of contract this day made and entered into between F. M. Coker and Jolm R. Worrill, both of said county and State :
“ 1st. Worrill agrees, and does hereby discontinue, and dismiss all suits at law or in equity, which he has against Coker, without cost or expense to Coker.
“3d. Worrill is to settle with L. C. Barrett all his claim in the Gibbons M. Taylor mortgage claim, which he has already done.
“ 4th. Worrill now dismisses his writ of error filed in Sumter superior court, in the case of F. M. Coker vs. John R. Worrill, the same being a judgment foreclosing mortgage on realty, and agrees to let the judgment for $8,000 00 in that case stand and be permanent, and let fi. fa. issue thereon and remain in the hands of F. M. Coker, to be levied and used in case the said Worrill shall fail to pay punctually the notes described in the second part of this contract, and in case said judgment has to be so used it is to remain good for the $8,000, interest and costs, called for by the face thereof, and in case of the failure to pay said notes punctually at maturity, or any one of them, then said judgment shall be free from any. plea or legal exceptions thereto on the part of said Worrill.
“ 5th. Coker agrees to hold up, and not proceed to enforce the collection of the $8,000 00 judgment described in the fourth part of this contract until there is, or may be a failure on the part of the said Worrill to pay punctually any one of the notes described in the second part of the contract.
“ 6th. In case of the prompt and punctual payment on the part of Worrill of the notes described in the second part of this contract, then at the end of the last payment the said Coker agrees to cancel the judgment for'$8,000 00, described in the fourth part of this contract, and the mortgage on which it is based, and deliver the whole over to Worrill, but should the notes not be paid as aforesaid, then the fi. fa. for the $8,000 00, is to be valid and intact to all intents and purposes in favor
“In testimony whereof the parties hereto have hereunto set their signatures, this the first day of June, 1872.
“This compromise is to settle Coker’s half interest in the Taylor mortgage claim for some $3,800 00, dated in 1862; and is to settle all claims had by Worrill against Coker.
“ The $8,000 00 mortgage judgment being for the purchase money of the land included in the mortgage, this compromise is not to affect the priority or lien which the law gives to this character of debt. Signed in duplicate.
“JohnR. Worrill,
“E. M. Coker.”
Worrill paid the first note named in said contract of compromise, but failed to pay the two next falling due; and on the 3d day of December, 1874, Coker was going forward to advertise and sell said land by virtue of said mortgage fa., under the said old levy, when Geraldine Worrill, wife of said John R., interposed her claim to said land, and at the same time made an affidavit, under the statute in such case made and provided, of her inability to give the bond and security required by law, on account of her poverty. Whereupon Coker filed his bill setting up the foregoing facts, charging waste and mismanagement of said plantation, and fraudulent combination between said John R. and the said Geraldine to hinder, delay and defraud him in the premises, and the insolvency of all the parties defendant to said bill, and concluded said bill with a prayer for an injunction against waste and mismanagement, and the appointment of a receiver to receive the rents, issues and profits of said land, subject to the final decree of the said court, with a waiver of discovery, etc.
“After hearing the bill, answer and affidavits in this case, and after argument of counsel, it is ordered, that Moses Speer, Esq., be, and he is hereby appointed receiver, to take charge of the farm mentioned in said bill, and receive the crops, issues, rents and profits arising therefrom, and hold them subject to the order of the court. If John R. Worrill withdraws his mules and other stock from said farm, which he is at liberty to do, the complainant, Coker, must furnish such stock as is necessary to said farm. He is also to supply said farm with all needful- implements of husbandry, and furnish all such supplies as are necessary to keep said farm in running order, and necessary to further the crop.
“After the crops of the year are gathered, the receiver will report to this court the amount and kind thereof, and will keep an account of all expenditures and receipts, and be ready at any time to report to this court.
“ J. M. Clark, j. s. c. s. w. c.
“At Chambers, August 2d, 1875.”
And afterwards, during the October adjourned term of said court, 1875, defendants, by their counsel, entered their general demurrer to said bill, for the want of equity, and moved to dismiss said bill and discharge said receiver, which demurrer was overruled, and the receiver retained by the court, and defendants excepted.
The question, therefore, is, do the above recited facts make a case for the interposition of equity? If the ease stood between Parker, the vendor and mortgagee, and Worrell, the purchaser and mortgagor, and if, as is alleged, the defendants were insolvent and were committing waste, there being a certain lien on the land in the way of a mortgage to secure the purchase money, there can be no doubt that there would have been equity in the bill: Tufts vs. Little, 56th Georgia Reports, 139; Chappell vs. Boyd et al., this term.
Judgment affirmed.