Sims v. Goodwyn ( 1860 )

By the Coicrt.

Lyon, J.,

delivering the opinion.

Napoleon B. Goodwyn, one of the defendants, commenced an action of trover, in Coweta Superior Court, against Nancy Goodwyn, the other defendant and his mother, for the recovery of certain negroes, and after much litigation, succeeded in recovering judgment against her for the value of said negroes and their hire, amounting, in the aggregate, to the sum of ten thousand dollars, eight thousand of which could be discharged by the delivery of the negroes.

By reference to the report of that case in 20 Geo. 420, and 29 Geo. 225, where all the facts and grounds of that recovery are represented at large, it will be seen that the title of Napoleon B. rested on the following facts: The negroes, or those from which these now in controversy sprung, were levied and sold at sheriff’s sale, in the State of Virginia, on the 6th of May, 1829, as the property of Burwell P. Goodwyn, the husband of one and father of the other of defendants, when they were bid off by one Oliver, for the defendant in execution, Burwell P. Goodwyn, who paid the price at which they were sold at that sale. The possession of the negroes were unchanged, but, for some purpose, a title for the negroes was made to Mrs. Elizabeth Goodwyn, the mother of Burwell P., and in 1830, she, by her will, bequeathed them- to her grandson, Napoleon B. — she never having had possession of them, but the negroes continued in Burwell Goodwyn’s possession up to his death, in 1835. There was no administration had upon his estate, for he seems to have been very much embarassed and wholly insolvent. After the death of Burwell, the negroes continued in the possession of his widow, Mrs. Nancy Goodwyn, who, sometime afterwards, removed with the negroes and her children to Coweta county, Georgia, where that suit was brought, in 1849. Upon these facts, this Court ruled — the question being directly presented — that, “if Burwell P. Goodwyn’s money paid for the negroes, Mrs. Elizabeth Goodwyn, not having got possession of the negroes, never could have recovered them from him during her lifetime, neither could she will them after her death so as to enable • her legatee to do so.” 20 Geo. 621. Notwithstanding this ruling, the plaintiff in that action succeeded in a recovery, not on the strength of his title, but in consequence of the admissions of his mother, the defendant in that action. As against her, he is entitled to the possession of the negroes and an account for the hire, so it is adjudicated. But at that stage of the proceeding, and before that judgment is executed, administration is taken out on the estate of Burwell P. Goodwyn by the complainant, who, it seems, is the security on the bail bond, given by Mrs. Goodwyn upon the demand of her son, and, consequently, is liable for this sum of money .so recovered. And he files this bill, asking the Courts to' enjoin the collection or settlement, alleging, among other things, that, if the negroes should go into the possession of Napoleon in settlement of that judgment, that the property would be run off, or squandered, or seized by his .creditors, and new issues, and new litigation would be the consequence; that he, Napoleon, is wholly insolvent and utterly unable to respond to any recovery that might be had. against him in this behalf. That, if Nancy Goodwyn be allowed to settle this judgment with this property, it would take all she had to pay it, and she would be unable to respond to a recovery, etc. Upon these facts, we think, the complainant is entitled to the injunction, for by the injunction complainant is fully protected and indemnified against any loss from a change of the property, to which, according to the allegations in the bill, it would be greatly exposed, and for the additional reason that the complainant is entitled to a recovery of the property, and the injunction should be allowed', for the purpose of protecting the defendant, Nancy Goodwyn, who is also before the Court by this bill, and as much entitled to relief as if she had solicited it; for it would be grossly inequitable and unjust to compel her to pay this judgment and, also, answer to the demand of the complainant, for the identical property — for to that demand she is clearly liable — and a Court of Equity ought not to permit her to respond for the same property or cause of action but once.

.It is objected to the grant of this injunction by the defendant, Napoleon B., that the demand of complainant is stale. It certainly can not be so as to him; for he never has had the possession of the property, so that the statute of limitations could run as against him. And that is a sufficient reply to that obj ection.

It is also said that the common law remedy of the complainant is adequate and complete, but it is not so, on account of the insolvency of Napoleon B.; besides, no action can be had against him until he gets the property, and when he does that, it is perfectly possible that the process of the Court could neither reach him or the property. That’s the case made in the bill. Nor would any common law remedy, even if Napoleon B. was responsible and solvent, fully meet and pn> tect the rights of all the parties in interest. The complainant might possibly be protected, if Mrs. Nancy Goodwyn could respond to both actions, and a recovery in each; but this she is not able to do, and if she could, it would be inequitable to so compel her.

The injunction must be allowed on complainant giving the bond required by the statute.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in refusing to sanction the injunction prayed for in this bill. On condition that complainant gave the bond required by the statute in such case, the injunction should have been granted.