Field v. Jones , 10 Ga. 229 ( 1851 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The pleadings in this case are formidable for voluminousness. It is not necessary to trace the progress of the cause. The question is m5.de upon demurrer to the amended bill. We do not doubt the right of the defendant to demur after the filing of the amendment. It was a material amendment, and when that is the case, it is competent to demur to the whole bill, even after the answer is in and replication filed. See Boothe & Raines vs. Stamper, decided.„at the last July Term at Americus. This demurrer denies generally that complainants are entitled to discovery and relief on the case made. We find that the matter in controversy is, whether they have not an adequate remedy' at Common Law. The case, disencumbered of lumber, is this : The plaintiffs in error are judgment creditors of the Southern Insurance and Trust Company, a corporation located in Florida. They file their bill and charge, that that corporation having claims in this State upon divers persons, settled them by receiving in payment certain lots in the City of Columbus. The property so taken, is particularly described; and that the titles to the same, instead of being executed to the company, were made to one George Field, he paying nothing therefor. 'They charge farther, that their executions have been levied upon the property, and that it has been claimed by Field, and that the claim is now pending. Also, that there are debts due to the company for the rent of the property, and on other accounts, in the hands of Mr. Schley, all of which, with the names of the debtors, are particularly set forth. By consent of parties, Mr. Schley was appointed receiver, to take charge of and collect the debts and rent the property. The answer of Field came in before the amendment to the hill. The demurrer has nothing to do with that. The-prayer of the bill is, that Field be enjoined from prosecuting his claim to the property, and collecting the rents therefor; that his titles be set aside, and titles be executed to the Southern Insurance and Trust Company, and the property be decreed to be sold, and the proceeds and debts due to the company be paid to the executions of the complainants, and other executions against the company, according to their liens and priorities. This is the case. Upon such a state of facts, we do not doubt but the remedy of these plaintiffs in execution is quite sufficient at Law. So thinking, even if Equity had concurrent jurisdiction, a Court of Law, being already in the exercise of jurisdiction, we are constrained to sustain the demurrer. It is, in my view, highly expedient to adhere to those ancient landmarks which define the boundaries between Common Law and Equity jurisdiction. So far as the property is concerned, conveyed to Field, the case is the same in principle with Pitts and Bullard... The price was paid bv the company, and the titles were made to Field. Field is a naked trustee of the legal title. 3 Kelly, 5. The company has an estate in it, which is subject to levy and sale.

What is to prevent the plaintiffs in execution from proceeding, as they have begun, at Law ? The bill gives no reason whatever. No fraud is charged. That is, fraud was charged, and the complainants amended their bill, and struck out the allegations as to fraud. The question of title can be as well tried in a Court of Law as a Court of Equity. Indeed, that is the appropriate tribunal for the trial of titles. The property, if condemned, would be as fairly brought into market, as if ordered to be sold under a decree in Chancery. A formal annulling of Field’s deed, and the execution of deeds to the company, is unnecessary. If the property is made subject, by a judgment at Law,, upon the trial of the claim, it cannot be questioned but that the purchaser at the sale would get a good title. Both Field and his feoffees would be estopped by that judgment. This bill does, not make a case even for discovery, for it does not charge that, for want of evidence, it is necessary to sift the conscience of the complainant or of Field.

[2.] So far as the debts due to the company are concerned, in the hands of Mr. Schley or others, the plaintiffs in execution have a remedy provided by Statute to reach them. The process of garnishment is at their command.. We have decided at Talbotton, some terms ago, that a plaintiff in execution cannot go into Equity, to subject debts due to the defendant in execution, until he has tried his remedy by garnishment, and found that inadequate. I cannot, at this moment, refer to the case. We hold the same doctrine now. Sustaining this demurrer to the bill, the appointment of receiver and the injunction fall, as a matter of course, for the bill is out of Court.

Let the judgment be reversed.