Brown Guano Co. v. Bridges , 1925 Ga. App. LEXIS 460 ( 1925 )

Bell, J.

(After stating the foregoing facts). The defendant in error insists that the judgment was right because the fund in controversy, having been derived from the sale of real estate, was to be treated as realty, and as such was not subject to garnishment. We are unable to agree that money derived from the sale of real estate by executors should be considered different in character from any other money in their hands, where the question is merely whether it is subject to garnishment by a legatee’s creditors. On the theory of equitable conversion, the proceeds of real estate sold under a power of sale conferred by the will of a decedent are usually regarded as personal assets of the estate. 11 R. C. L. 120, and cases cited. “Where a testator directs that real estate shall be converted into personalty, or vice versa, the direction impresses the property with the character of that into which it is to be converted, from the date upon which the change is to be made.” Civil Code (1910), § 3913. It was the duty of the executors who were the garnishees to answer what property, money, or effects they had in their hands belonging to the defendant at the date of the service of the garnishment and also what property, money, or effects of the defendant had come into their hands at any time from the date of the service to the date of the answer. Civil Code (1910), §§ 5271, ,5272. The real estate had been converted into money and was personalty at the time the garnishees made their answer. It seems clear that the fund was subject to the process of garnishment. See, in this connection, Gammage v. Perry, 29 Ga. App. 427 (116 S. E. 126).

The next question that presents itself is whether the writing, provided it was supported by a consideration, constituted either a legal or equitable assignment of the fund. Any language, however informal, will be sufficient to constitute a legal assignment, if it shows the intention of the owner of the right to transfer it instantly, so that it will be the property of the transferee. Southern Mutual Life Ins. Co. v. Durdin, 132 Ga. 495 (1) (64 S. E. 264, 131 Am. St. Rep. 210). It is further true, however, that “An instrument, other than a draft, purporting to assign a sum of money to be paid out of a fund claimed to be in the hands of another, without describing the identical money intended to be conveyed, will not of itself convey legal title to any part of the fund which in fact may be in the hands of such other person.” W. & A. R. Co. v. Union Investment Co., 128 Ga. 74 (1) (57 S. E. 100). And measuring it by this rule, we are of the opinion that the writing in question did not operate to convey legal title to the fund in controversy and therefore did not constitute a legal assignment. See also Baer v. English, 84 Ga. 403 (1) (11 S. E. 453, 20 Am. St. Rep. 372). Did it amount to an equitable assignment? In the case of Jones v. Glover, 93 Ga. 484 (1) (21 S. E. 50), it is said, “In order to infer an equitable assignment, such facts and circumstances must appear, as would not only raise an equity between the assignor and the assignee, but show that the parties contemplated an immediate change of ownership with respect to the particular fund in question, not a change of ownership when the fund should be collected or realized, but at the time of the transaction relied upon to constitute the assignment.”

We are of the opinion that it'sufficiently appears from the extraneous evidence and the writing itself that it was the intention of the parties in the present case to make an immediate change of ownership with respect to the fund in question. It is not necessary that the fund attempted to be assigned shall be in actual existence at the time, for it is well settled that it is sufficient if it “exists potentially.” It is possible to make an equitable assignment in writing even of money yet to become due. Walton v. Horkan, 112 Ga. 814 (38 S. E. 105, 81 Am. St. Rep. 77). The instrument in question does not fail as an equitable assignment merely because the amount of money therein stated was in excess of the drawer’s legacy. Ison Co. v. Atlantic Coast Line R. Co., 17 Ga. App. 459 (2) (87 S. E. 754). The interest of a legatee in an estate is assignable, under the law of this State. Civil Code (1910), § 3654; Newsome v. Cogburn, 30 Ga. 291; Wilcoxon v. Harrison, 32 Ga. 480; Pylant v. Burns, 153 Ga. 529 (112 S. E. 455, 28 A. L. R. 423). The instrument not being a draft, and the proceedings being in garnishment, it was not necessary for the executors to consent thereto, even if the assignment had been of a part of the fund only. Few v. Pou, 32 Ga. App. 620, 624 (124 S. E. 372); Western & Atlantic R. Co. v. Union Investment Co., 128 Ga. 74 (57 S. E. 100); Western Union Tel. Co. v. Ryan, 126 Ga. 191 (2) (55 S. E. 21). The rule would be otherwise as to a partial assignment sought to be enforced in a common-law action against the debtor or holder of the fund. Rivers v. Wright, 117 Ga. 81 (43 S. E. 499). Under the facts of this case it was not necessary for the executors to accept or assent to the assignment, and we therefore need not determine the sufficiency of the effect of their purported assent as made. Southern Ry. Co. v. Pitner, 17 Ga. App. 451 (87 S. E. 754). We conclude that the trial judge, acting as court and jury, was authorized to find that the instrument in question, when considered in connection with the extraneous evidence with reference thereto, was an equitable assignment of the assignor’s interest in his father’s estate. See, in this connection, Brown v. Southern Ry. Co., 140 Ga. 539 (79 S. E. 152).

But the above conclusion as to the validity of the instrument as an equitable assignment has been reached on the assumption that it was supported by a consideration. The claimant assignee testified that he had taken the instrument to secure him in what his brother, the assignor, owed him and that the debt was still existing. In Few v. Pou, supra, this court said, “Where therefore, a claimant in garnishment relies upon what amounts to a mere equitable assignment of rents, transferred as collateral security for a pre-existing debt, such existing debt will not of itself afford any presumption as to a valuable consideration supporting the assignment, but the burden is upon the assignee to show some valuable consideration to support the transfer.” The claimant testified also, in general terms, that he paid value received for the assignment; but when his entire testimony is considered together and construed most strongly, or even reasonably, against him, it appears that what he considered as “value received” was the existing debt which the assignment had been taken to secure. And the mere fact that the fund referred to in the assignment was to be paid on a date in the future would not be sufficient to show an extension of the maturity of the indebtedness secured thereby, although such extension, if made, might of itself have amounted to a consideration. As to this feature of the case we are of the opinion that the claimant failed to show any consideration for the assignment, and that, therefore, the court erred in awarding the fund to him.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.