S. Stricker & Co. v. Tinkham , 35 Ga. 176 ( 1866 )

Walker, J.

[1.] It is admitted by counsel for Tinkham that the words of the assignment to Horle would make the instrument obnoxious to the provisions of the (7ode, seo. 1954, if the instrument had been executed in Georgia. But it is insisted that the assignment, according to the laws of Tennessee, where it was executed, is legal and valid ; and, being valid there, is valid everywhere, We admit the general rule, that the lex loci governs in determining upon the validity of a contract, &c., but the rule is not without exception. Section 9, of the Code, says: “ The validity, form and effects of all writings or contracts are determined by the laws of the place where executed. When such writing or contract is intended to have effect in this State, it must be executed in conformity to the laws of this State.”

[2.] This assignment “is intended to have effect in this State,” and, to make it valid, it should have been executed in conformity to our laws; and, not having been executed in such terms as to be valid according to our statutes, we hold that it is void. •

[3.] We could not enforce a contract, valid where made, if it “ is of such a character as contravenes the policy of our law.” Code, sec. 2702. Hershfield vs. Dexter, 12 Ga. R. 586.

[4] It was insisted that a Court of Equity will reform an instrument so as to make it conform to the intention of the parties. It is true that, under certain circumstances, equity will reform an instrument, (Code, sec. 3047) though this power is exercised with caution; (sec. 3050) but it will not do so until a proper case is made by the pleadings. Here Tinkham says “ that, with an honest intention to do the very best he could with all his creditors, to treat them all justly- and equitably, and to turn over to them, for their own use and benefit, all his property, he executed said assignment,” &c. There is no allegation of any mistake made by the draftsman in framing the assignment, nor that the assignor intended that all of his creditors should participate egudlly in the property assigned; nor does he allege what he considers just and equitable treatment of his creditors. We are left to presume that he thought certain ones should be preferred to the partial exclusion of all the others.

[5.] He prays for a reformation of the assignment, so as to make it conform to the laws of Georgia. In other words, that inasmuch as the assignment which he attempted to make is a mere nullity, he prays that a Court of Equity may make one for him. Courts do uot make contracts for parties, hut enforce such legal contracts as parties make, when called on so to do. Under any view which we cam take of this case, we can see no equity in it, and think the Court should have sustained the demurrer and dismissed the bill.

Judgment reversed.