Merchants' Bank v. Davis , 3 Ga. 112 ( 1847 )

By the Court.

Nisbet, J.,

delivering the opinion.

As to the jurisdiction in this case, we think the pendency of [1.] ■the claim for the land in Baker county, and this bill purporting to be ancillary to it, gives the jurisdiction to the Superior Court in that county. The execution issued from Pulaski and is returnable there, but is levied on land in Baker. By the Constitution, all trials involving title to lands are to be had in the county where the land lies. A claim to the lands is put in, in Baker, by the complainant, and he files this bill, among other objects, to aid him in the prosecution of that claim. "Whether the aid is properly invoked we shall inquire hereafter. The jurisdiction attaches upon the suit pending, by way of claim, in the county of Baker.

The agreement charged in the bill to have been made [2.] between Davis, and Rawls the then owner of the execution, to wit, that he Rawls would not collect it out of the property which complainant had bought of Collier, is wholly without consideration and void. It is -a naked promise — no sort of consideration is pretended to have moved it. Rawls, holding a judgment against Collier, Bracewell and 'St. G-eorge, whose lien attaches upon certain property which Davis had bought of Collier, promises Davis not to levy upon that property, but to collect the judgment out of the other defendants. There is no benefit to Rawls, and no detriment to Davis, upon which this agreement could rest as a consideration. The pact is perfectly nude, and we cannot enforce it.

The main reliance to sustain this bill seems to be, the in- [3.] terest which the complainant has in an agreement entered into between Rawls, the owner of the execution, and Collier, one of the defendants in execution. The bill charges, that Davis, the complainant, bought a body of land and parcel of negroes from Collier, and, in payment, agreed to take up all just debts outstanding against Collier; that Collier was insolvent, and in consideration that he, Collier, would apply the yearly proceeds of his personal labour to the payment of one-third of the judgment which Rawls held against him, Bracewell and St. George, Rawls agreed with Collier to release him from all liability for the balance of the judgment. That the existence of this judgment, and the understanding with Rawls in relation to it, was made known to Davis at the time that he bought the property of Collier; that Rawls subsequently acknowledged this contract with Collier to Davis; that Davis paid up the balance of the one-third of the judgment remaining due — -some two thousand dollars ; and further, that Rawls had received of St. George, effects enough to pay one-third more of the judgment; and that there was property enough in the county of Pulaski, belonging to Bracewell, to satisfy the entire balance, which he, Davis, pointed out; that Rawls would not levy upon it, but permitted Bracewell to eloign it. Afterwards, the execution being fraudulently transferred to the Merchants’ Bank of Macon with a view to evade the contract with Collier, it was levied upon Davis’ property, in the county of Baker. Davis having put in his claim to the land levied on, and the same being depending on the appeal, he files this bill, and prays that the answers of the defendants may be read on the trial of this claim, and that the plaintiffs in the execution may be decreed to be enjoined from pursuing their recovery on the execution. Thus the bill seems to be both for relief and discovery. The contract between Rawls and Collier is claimed to be also void, for want of consideration. We think the undertaking of an insolvent man, to apply the yearly proceeds of his personal labour in payment of part of a debt, a good consideration to support a contract to release him for the balance; it is as though he had given his indentures; it is certainly a pledge of that which the plaintiff, Rawls, could not have reached, and is a benefit therefore to him. Without this pledge, Collier being insolvent, Rawls could have gotten nothing out of him. If this contract be, as we think it is, valid as between Rawls and Collier, and as between the Merchants’ Bank and Collier (that institution, as the bill charges, having notice of it) if it is fulfilled on the part of Collier, (and the bill charges that it was by a payment of one-third,) then the effect is an extinguishment as to Collier of .the whole judgment. Was Davis then entitled to have his property protected from that judgment 1 Was it not paid and extinct ? was not the lien upon his land extinguished ? We think it was.

The next question however is, could he not have proven all [4.] this at law? Was his remedy an adequate one at law? The rule is familiar to all, that where a party has a complete remedy at law, he can not invoke the jurisdiction of chancery, or rather chancery has no jurisdiction. A party is entitled to go into equity for discovery, to sift the conscience of his adversary to aid his cause at law; but to do so, he must aver inability to prove the facts upon which he relies at law, without a resort to the conscience of his antagonist; or he must show some other ground for equitable interference with the common law jurisdiction. Neither of these has this complainant done. All that looks like it is, the prayer that the answers of the defendants may be read upon the trial of the claim. This is not enough. From all we can see, this complainant has an ample remedy at law, and his bill was demurrable for want .of equity.

Let the judgment of the Court below be reversed.