Green, Tracy & Co. v. Ingram , 16 Ga. 164 ( 1854 )

By the Court.

Starnes, J.

delivering the. opinion.

[1.] The structure of this bill is very objectionable. Most of its allegations are inaccurate, loose and uncertain; and this is shown as follows:

1. It is alleged that “ said firm of Green, Tracy & Co. or some of the members composing said firm”, had obtained control of a number of the oldest fi. fas. and judgments against said Ray. This alternative statement must have reference, both to the firm and to individual members thereof; no other reasonable signification can be given to the words, or some of the members composing said firm; for if it had been intended to allege, that some of the members, in this behalf, acted for the firm and not for themselves, then there would have been no necessity to have made the statement in the alternative— as the acts of those members would have been the acts of the firm. The allegation is therefore defective. We learn from elementary works on this subject, that “if two plaintiffs sue, and the bill allege that the title was in one of other of them, in the alternative, it w'ould be demurrable, not only for uncertainty, but, because it shows that there must, necessarily, be a misjoinder of the plaintiffs”. So where tv'o defendants are sued in the alternative, for a precisely similar reason, the pleading must be bad. (1 Story Eq. § 510.)

2. The bill goes on to allege that said firm of Green, Tracy & Co. or some of them, had obtained control of said fi. fas. “ either by purchase, or ^otherwise”. Insinuating, by another alternative statement that these/, fas. might have been obtained by covinous arrangement. This loose and uncertain allegation, is also objectionable.

In the case of Cresset vs. Milton (1 Ves. Jr. 449. 3 Bro. C. C. 480) a bill had been filed to perpetuate testimony to a right of common, and of way; and it stated that “the tenants, owners, and occupiers of the lands, and in right thereof or othenoise, have, from time immemorial, had the right of way,” &c. Upon demurrer, Lord TJiurlow said, “you have not stated whether the right of way is appurtenant or appendant to the land, &e. that you hold; and you state it loosely, that you have such as belongs to your state or otherwise; so that your bill is to have a commission to try any right of common whatever”. To like purport, see judgment of Lord Keeper North, in Gell vs. Hayward, 1 Ver. 312.

3. Eor a similar reason is tbe statement objectionable, that complainants believe defendants “bought the same, either for Hay, or after his death, with a full knowledge ofhis insolvency,” &e.

4. The bill also states, that “ it may be that to some of said fi. fas. and judgments, they, the defendants, have not procured formal assignments and transfers,” &c. And also, “on some of the fi. fas. and judgments, so bought and controlled by said Green, Tracy & Co. thero have been payments made, which are not credited”; and they pray that the defendants may be compelled to disclose the payments, &c.

These, too, are inaccurate and uncertain averments, and objectionable on similar principles to those above stated.

In Ryves vs. Ryves, (3 Ves. 343,) where a bill ivas filed for a discovery of title deeds, and for the delivery of the possession of tbe lands to plaintiffs, &c. “ upon a loose allegation, that under some deeds in the custody of the defendants, the plaintiff was entitled to some interest, in some estates in their possession, but without stating what the deeds were, or what the property was to which they applied, a demurrer was allowed”.

5. Again — we find the allegation, “thi't most of the fi. fas. and judgments, so bought and controlled, are against said Bay, jointly, with others,” &c. Touching a similar allegation in the bill, which was filed in tbe case of McG-ehee et al. vs. Jones, (10 Ga. 137,) this Court has said, that “ no practical issue could be formed on it. lie does not aver that the executor has no assets to pay the damages: he says, he has not in hand, sufficient for that purpose; and adds, that most of the assets have been paid out or distributed. Thero is no certainty in this averment”.

[2.] But, if we take such statements as do a ppear in this Dill, as the complainants’ case, without objection for uncertainty, wo strongly incline to think that the prayer cannot be granted.

According to such showing, what is their equity, as to the interest in the properties of the Telegraph Office (which was one half of said properties,) purchased by defendants?

The hill shows, that tho purchase which they made of this property, was a Iona fide purchase. It makes known the fact, that their fi.fas. were the oldest against this property, and that it was liable to these, and to tho firm debts of Ray & Ross, which may have existed at the time of its purchase. It, perhaps, shows that they had used diligence and consulted thrift, getting control of the superior liens against the property; and then having control of these liens, purchased tho property. If this were a bona fide purchase, however, and Green, Tracy & Co., have paid a consideration to Ray & Ross, or the estate of Ray, for the same, how can a Court of Equity compel the former, for the gratuitious benefit of others, now to lose a benefit, fairly gained by them in tho due course of trade, by forcing them, as it were, to satisfy their own executions out of their own property ?

it would seem that the very statement of tho simple question,, should he sufficient to constitute its own answer.

Tho maxim, “tS'ic utere tuo tet alienum non laedas” was invoked by tho Counsel for the complainants, as opposed to the use which these defendants wore making of their rights, as judgment creditors, hero. We do not understand how this maxim can ho made applicable to such a case, and wc think it cannot be- made applicable unless, possibly, where there ivas a distinct and accurate averment that these older fi. fas. had been purchased at a discount. In such case, perhaps, if the fact were-distinctly set forth, a Court of Equity would not permit the-legal title of the complainants, to the whole of the executions, to be used, as against the fund in Court, to tho injury of the younger judgment creditors.

We may-also add, here, that if there were a distinct allegation in tho bill, to this effect, and the prayer was not that these older fi.fas. be enjoined, and ho entered satisfied, but that in consideration of this fact, they bo allowed to recover only pro tonto, this would present a different caso — such a case as was referred to in the books cited by the Counsel for the complainants.

As the case is presented, it is a simple question of right, between two sets of judgment creditors, to a given fund. One set, only, of them can have the right. If Green, Tracy k Co. have that right, the complainants cannot have it. If the former have the right, they are entitled to the fund. And to insist, that if they are thus allowed to get the fund, they will be doing wrong, and injuring others, is, as it impresses us, like insisting, that by doing what is right, they will be doing ivhat is wrong.

[8.] What, in the next place, is the equity presented bj the bill, as to the half interest in this printing office, retained by Ross? The bill alleges that this, his.interest, is subject to these older fi. fas. owned by the defendants; and it has been insisted, that the defendants should be compelled to have the same subjected to the payment of their executions. Now, according to the bill, this interest is subject to these older fi. fas. —subject to the debts of the partnership of Ray k Ross, and is the private property of Ross. Thus, the latter is shown to be in the position of one with a fund in his hands, on which there arc two liens or claims; and certainly, if the first of these, (as stated above) were being pressed against the property, he would have the right to insist, that in Equity, the plaintiffs in fi. fa. should be turned away, and compelled to go against a fund of Ray, which was his individual property — which is the character of the fund raised by the sale of these slaves.

If the reply be, that on this latter fund, too, - there is another lien, viz: the lien of these complainants’judgments, the answer is, that this only shows, that these complainants, as well as Ross, as to this fund, are in the attitude of innocent claimants, with equal equities; and between such, a Court of Chancery .will not interfere.

We may add, hero, that if Ross’ interest could be, by this bill, subjected to the payment of these fi. fas. he would be a •necessary party to the bill.

[4.] As to the allegation, that the defendants, as plaintiffs-in these older fi. fas. “ have not only laid by and neglected to enforce their rights, and the collection of their money, but have allowed rnouey, to a large amount, raised from said Ray, by the Sheriff, either by sales or otherwise, to be applied to the payment of junior liens” &c.; it is the opinion of this Court, that the same presents no equity. There is no charge of fraud or collusion, or advantage gained by this conduct — nothing more than simple negligence; by which, so far as this statement shows, no one but the complainants, themselves, suffered. We know of no fule of Law or Equity, which will make this a satisfaction of the debt.

Judgment reversed.