Dozier v. Logan , 101 Ga. 173 ( 1897 )

Atkinson, J.

We have no difficulty in reaching the conclusion that, under the facts in the present case, the chancellor, to whose judgment exception is taken, erred in appointing a receiver. Under the provisions of the act approved October 16, 1889 (Acts of 1889, p. 108), the assignees named in the deed of trust, before entering upon the execution of the trust confided to them, gave a bond with two securities, conditioned in accordance with the terms of the statute. Under the provisions of the statute above referred to, this bond was executed for the protection of the creditors of the assignor; and if any one of them suffered injury in consequence of the misfeasance or nonfeasance of the assignees, the statute gives him a remedy against the assignees, and the sureties on their bond. As we have said before, there was an acceptance of this trust by the assignees. While there are some vague, indefinite intimations in the petition filed for the appointment of a receiver, to the effect that one of the assignees who seems to have been most active in the execution of the trust was wanting in capacity as a man of affairs, there is no suggestion of any fraud or improper conduct upon his part in dealing with the trust committed to his care. All such allegations are general in their, terms, and are fully refuted by the uncontradicted testimony of numbers of witnesses who testified to the business qualifications of the assignee whose capacity was assailed. The only real complaint seems to be that the assignees are not as speedy in the execution of the trust as the creditors, impatient of delay, would seem to desire. There is an allegation that one of the sureties on the bond of the assignees is insolvent, but there is no intimation in the record that the two principals and one of the sureties are not each and all of them entirely solvent. In the absence of any attack upon their solvency, the court is hound to presume that they are solvent and possessed of sufficient means to answer any judgment which may be recovered against them upon the bond. Therefore in no possible sense can it be said that these creditors are remediless according to the strict rule of the common law. They have a perfect security, and the one provided by statute to meet this identical contingency. In the absence, then, of allegations of fraud or misconduct upon the part of the assignees, there is no possible theory, according to our conception of the law, upon which a court of equity is authorized 'to take from the hands of these assignees the property committed to their care for the benefit, not alone of the complaining creditors, but of all the creditors of the assignor. As was well said by Mr. Justice McCay, in the case of Crawford v. Ross, 39 Ga. 49, “The high prerogative act of taking property out of the hands of'one, and putting it in pound, under the order of a judge, ought not to be taken, except to prevent manifest wrong, imminently impending.” If it were possible for the court, as at present constituted, to add anything to the emphasis of this language, it would do so without the .slightest hesitation.

The appointment of a receiver is recognized as one of the harshest remedies which the law provides for the enforcement •of rights, and is allowable only in extreme cases, and under circumstances where the interest of creditors is exposed to manifest peril. The courts of late years are drifting away from the landmarks which in former years marked the line of division between the power of chancery courts to seize the property of an individual through the instrumentality of a receiver, and the right of the individual himself to retain possession until by the judgment of the court his property could be judicially appropriated to purposes inconsistent with his individual possession. In the exercise of the great discretionary power conferred upon •our brethren of the circuit bench with respect to such matters, they can not be too cautious; and unless there is an immediate and present necessity for such action, of which we find no evidence in this record, the appointment of a receiver should be refused.

Let the judgment of the court below be reversed.

All the Justices concurring.