Wellborn v. Bonner , 9 Ga. 82 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The assignee of the judgments o.ccupies precisely the same position, as to all his legal rights, as did the original plaintiffs against the property of the defendant, and has the same right to collect the same for his own use and benefit, in as full and ample a manner as the original plaintiffs could have done, if no such transfer or assignment had been made. Prince, 465. That judgments may be set off, both at Law and in Equity, is admitted; but the latter Court has no jurisdiction, when, from the facts of the case, the complainant has an ample and adequate remedy in the Common Law Courts.

In this case, it appears from the record, that complainant was not the owner of the judgments against Bonner, until after the rendition of the judgment in favor of Bonner against him. The judgment in favor of Bonner against Wellborn, the complainant, was rendered in February, 1850. In the month of March thereafter, the complainant purchased and obtained an assignment of the judgments against Bonner. At law, both parties were entitied to the process of execution, to enforce the payment of their respective judgments. The complainant, who is the assignee of the judgments against Bonner, asks the interference of a Court of Equity to restrain the collection of Bonner’s judgment against him, and that the judgments which he holds against Bonner may be set off, and operate as a satisfaction of the judgment obtained by Bonner against him. Each party holds a judgment against the other at this time, but there was no mutual indebtedness between the parties at the time of ihe rendition of the judgment in favor of Bonner against Wellborn. Wellborn, as the assignee of Millers, Ripley & Co. has the same right to collect the judgments and execution assigned to him, for his own use and benefit, in as ample a manner as the original plaintiffs could have done.

According to the Judiciary Act of 1799, all the property of the defendant is bound by the judgment from the date thereof. Prince, 426. Bonner sues out his execution against Wellborn, and the Sheriff collects the money; the money is in the custody of the law; the money is the property of Bonner, and subject to the payment of his debts. What is to hinder Millers, Ripley & Co.' from placing their judgments in the hands of the Sheriff, with notice to retain the money until the next term of the Court, and then, for the money to be distributed according to the respective liens upon it,, created by law? The complainant, who is the assignee of Millers, Ripley & Co. has precisely the same right; and then, all the liens created by law will be considered and adjudicated accordingly. But suppose a Court of Equity should interfere in favor of the complainant, who is a purchaser of a judgment lien upon the defendant’s property, subsequent to the rendition of the defendant’s judgment against him, and decree a set off or a satisfaction of the defendant’s judgment, with the judgment so purchased by the complainant, it will be perceived, that if this is allowed to be done, a junior judgment might be purchased, and satisfaction had thereof out of the defendant’s property, to the exclusion of other judgment creditors, who might have a prior lien upon the property of the defendant, and thereby defeat the provisions of the Judiciary Act of 1799. It is true, it does not appear on the face of this- record, that there are any older judgment liens against Bonner than the .one sought to be set off; but in our judgment, it ought, at least, to be made affirmatively to appear, that there are no other liens of older date upon the defendant’s property, before a Court of Equity should interfere, to appropriate the defendant’s property, in satisfaction of a particular judgment, in view of the special provisions of our Judiciary Act of 1799. The sole object of the complainant’s bill is, to have two judgments, which he has purchased from the original plaintiffs, satisfied out of the property of the defendant, Bonner, which the latter is entitled, by law, to receive from the complainant. Now, whether this satisfaction is to be obtained under the name of a set of, or by any other name, the effect is tire same; it is to extinguish Bonner’s judgment against Wellborn with the two judgments which the complainant has purchased since the rendition of that judgment against him in favor of Bonner. Wellborn’s two judgments, which he holds as assignee, are to be satisfied out of the defendant’s property, without it being made affirmatively to appear to the Court that there are no other liens created by law which would be entitled to satisfaction. Before a Court of Equity should interfere, under our law, to decree the satisfaction of a particular judgment out of the property or effects of a defendant, by way of set off, or otherwise, according to the facts as made in this case, it should clearly be made to appear that there is no other judgment lien which can claim priority of payment and satisfaction. Believing, as we do, that the complainant has an ample and adequate remedy at law, to obtain satisfaction of his judgment, according to the case made by his bill, we affirm the judgment of the Court below.