Williams v. Stewart , 56 Ga. 663 ( 1876 )

Bleckley, Judge.

1. Why should injunction be ordered, at the complainant’s instance, to stay the attachment suit pending in Fulton in favor of the mother against her son? Upon what is that attachment levied ? It does not appear by the bill. How will or can the suit prejudice the complainant? This is not shown, or even suggested, by the bill. What occasion is there for him to interfere with this family attachment?

2. On the facts alleged, injunction is not needed to protect the complainant against a recovery in the pending suit against himself on the paid note. That he ever indorsed that note is not distinctly averred; but if he did, and if the suit is founded on his indorsement, payment by the maker will be a complete defense at law.

3. Several reasons occur to us why a sale of the land by the vendee and his mother cannot be restrained for any cause shown in the bill. There is no allegation that they intend to sell it, or have endeavored to sell it. For aught that appears, they have nothing of the sort in contemplation. But how could they sell it, so as to put it out of complainant’s reach? He has the legal title. Upon that title lie could now, or hereafter, recover the land in ejectment. As long as he is liable upon his indorsement of either of the notes given for the purchase money, or as long as he is not reimbursed, should he pay off his indorsement, the legal title will remain where it is, unless he chooses to part with it. Let him stand upon that. Why does he not sue and recover the land ? There is no obstacle that we can see. And this resource will be available, whether the land is sold by others or not. Another measure is also open to- him, which is, to meet his obligation as indorser upon the note not paid off, bring suit upon that note, file a deed, and sell the land in the manner prescribed by the Code. But he has instituted no suit, either for the land or the purchase money. This brings us to his prayer for injunction against collecting the rents and the small note for timber, and for the appointment of a receiver. He has brought no suit, nor .does he render any excuse for not doing so. He does not allege that the land is insufficient to pay for itself, that it has depreciated in value, or that any waste has been, or will be, committed. He makes no case for the extraordinary remedies of chancery: 51 Georgia Reports, 602; Tufts vs. Little, 56th Ibid., 139.

Judgment affirmed.