Mordecai v. Stewart , 37 Ga. 364 ( 1867 )

Warner, C. J.,

dissenting:

In this case, I cannot concur with my brethren in the judgment which they have rendered. They differ in their reasons for the judgment, but concur in the general result thereof.

This is a bill filed by Stewart against Mordecai and Cutts, seeking to exxjoin Mordecai from foreclosing his mortgage upon Stewart’s property, with a prayer for equitable relief, in accordance with the facts stated therein. The facts alleged are, in substance, that Stewart, the complainant, became the security for Cutts to Mordecai, fora large sum of money, and as such security, mortgaged his property to Mordecai to secure the payment of the debt; that Cutts, his principal debtor, is entirely insolvent; that Mordecai, the principal, is indebted to .Cutts, his insolvent principal, a large sum of money, for usurious interest paid him, which, under the laws of this State, Mordecai is bound to pay back and refund tohim • that Mordecai, the creditor, who is proceeding to collect the debt of Cutts out of Stewart, his security, by the foreclosure of his mortgage upon- the property of the latter, resides out of the State, and the prayer of the bill is, that Mordecai may discover what amount of money he is indebted to Cutts for usurious interest paid by Cutts to him, and that the amount of money so found to be due by Mordecai to Cutts, may be credited on the debt due by Cutts to Mordecai, for which Stewart is only the security. The complainant Stewart, insists, that inasmuch as he is only the security to Mordecai for the payment of Cutts’ debt to him, and the latter being entirely insolvent, he is equitably entitled to have the amount due by Mordecai to Cutts, credited on the debt due by Cutts to Mordecai for the payment of which he is bound as security, and thereby relieve his property to that extent. What justice or equity is there in compelling Stewart, as the security of Cutts, to pay the full amount of Cutts’ debt to Mordecai, when upon a fair settlement and account between Mordecai and Cutts, one-half of it may be extinguished and paid off? If Stewart has the debt to pay as security for Cutts, he has no remedy to reimburse himself out of his insolvent principal, and therefore his equity to have the amount taken and the credit made now before his property is sold for its payment, is manifestly apparent. The bill alleges that there is a debt due by Mordecai to Cutts for usurious interest. Stewart is interested as the security oj Cutts, in having that debt appropriated, as this Court has held during the present term, in the case of Pope vs. Williams & Solomon (see the authorities cited in that case.) But it is contended that a Court of Equity, under the provisions of the Code, has no jurisdiction to grant the relief prayed for in this case; that the complainant seeks to have an equitable set-off allowed him ; that a Court of law can afford him as adequate and complete relief as a Court of Equity; that a Court of law having first acquired jurisdiction of the case, will retain it, and so mould the verdict as to do complete justice between the parties. I am perfectly aware that in these latter days oí progress, there is a certain class of judicial reformers, so-called, who, not properly comprehending or appreciating the beneficial practical results of the remedial process of a Court of Equity, seem anxious to abolish it from the Courts altogether, and to merge the common law and equity jurisdiction into a sort of hermaphrodite proceeding, so as to mould verdicts and decrees in the shortest and most expeditious manner, without any regard whatever, to the well defined legal and equitable rights of the parties. This new mode of procedure, it must be admitted, requires less professional labor, less professional skill and learning, but the rights and equities of the parties cannot be half so well considered or adjusted. This class of judicial reformers, so-called, are like eunuchs in a seraglio, who, incapable of enjoying the pleasures of the place themselves, are unwilling to see others do so; hence they are generally in favor of the hermaphrodite moulding process, and for abolishing the safe and well established mode of procedure in equity,which the experience of mankind for ages has found to be necessary for the adequate and complete protection of individual rights. But the legislature has not yet, abolished the jurisdiction of Courts of Equity in this State. The 3045th section of the Revised Code, declares that, “General equity jurisprudence embraces the same matters of jw'isprudence and modes of remedy in Georgia, as was allowed and practiced in England.” The jurisdiction, and remedies, incident to a Court of Chancery still exist in this State, have not been taken away or destroyed by the Code. Provision has been made for a certain class of cases, so as not to make it necessary for parties to go into a Court of Equity to obtain relief, such as a partial failure of consideration in the performance of contracts and cases of like character which may be tried in a Court of law, and the verdict so moulded, as to do justice between the parties; but how a Court of law has ever got jurisdiction of this equitable set-off which Stewart claims in his bill, I have not been able to discover. The truth is, according to the facts alleged in the bill, a Court of law cannot have jurisdiction of the set-off which he claims; it is purely an equitable right which he asserts, growing out of the facts of the case, of which a Court of Equity alone has jurisdiction. A set-off, to give a Court of law jurisdiction, must be between the same parties, in their own right. Eevised Code, sections 2849, 2850 and 3413. Stewart, the complainant, could not plead the set-off in a Court of law against Mordeeai upon the foreclosure of the mortgage; he does not pretend to hold the claim in his own right against him, and if he had plead it, a Court of law would not allow it. Tinsly vs. Beall 2d Kelly’s R., 134. How, then, can it be said that a Court of law has ever acquired jurisdiction of this set-off alleged in the complainant’s bill, for the purpose of moulding it, or for any other purpose ? It is assumed by the majority of the Court, that a Court of law, and a Court of equity have concurrent jurisdiction over this question of set-off as made in this bill. That is the proposition which I deny. But even admitting that a Court of law had jurisdiction, that Stewart had a remedy in the common law Court to enforce this set-off; still, if that remedy was not as complete and effectual as the equitable relief which he seeks, that would not deprive a Court of Equity of jurisdiction, Revised Code, section 3040. The general rule as to set-off, is the same in a Court of Equity as in a Court of law. The 3084th section of the Eevised Code declares that, “As to set-off equity generally follows the law; but if there is an intervening equity, not reached by the law, or if the set-off be of an equitable nature, the Courts of equity take jurisdiction to enforce the set-off.” The facts of this bill show an intervening equity not reached or recognized by the Courts of law, the set-off prayed for, growing out of the facts of the case, is of an equitable nature, of which no Court of law has jurisdiction to enforce, either by the moulding process, or by another process, for the simple reason it has no jurisdiction for that purpose. In my judgment, the complainant is entitled to have his bill retained in Court for the purpose of obtaining the discovery sought, and the relief prayed for, consequent upon that discoveiy, taking the facts alleged in the bill to be true, and that the judgment of the Court below should be affirmed.