Collins v. Barksdale , 23 Ga. 602 ( 1857 )

By the Court. —

Lumpkin J.,

delivering the opinion.

Was the Court right in refusing to grant the defendants motion, to vacate and set aside the two interlocutory orders which had been previously granted, the one dated the 15th, the other the 31st of July, 1857?

We propose to examine briefly the several grounds upon which this application was made.

1st. In the first place, it is said that there is no sufficient equity in the bill to authorize either of said orders.

Gibson Collins, it seems, had bequeathed to his widow, Elizabeth Collins, a life estate in a number of negroes, with remainder over ather death to the complainants. The testator appointed Joseph and John G. Collins his executors, who duly qualified as such. The bill charges, that after the affairs of the estate were wound up, the property was turned over by the executors to the tenant for life. That she disregarding the rights and interests of the remainder-men, placed two of the negroes, Richmond and Felix, both of them valuable men, in the hands of Joseph Collins, to sell the same and apply the money to the payment of debts. That the said Joseph Collins, well knowing the contents of said will, of which he had been an executor, and which, in its second item, expressly provided for an equal division of said slaves, with the whole of the other personal property to the remainder-men, at the death of the widow, sold the said two slaves to one James Riley, as reported for the sum of f2,150 00. That of the purchaser the complainants knew nothing. That the slaves were sent from Wilkes to Columbia county, to enable Joseph Collins, the confederate in this transaction, to commit this fraud upon the rights of the remainder-men. The bill charges, that neither Elizabeth nor Joseph Collins have any visible property, and are wholly irresponsible. And the complainants express the apprehension that they will lose their rights, unless some strong relief is awarded to them; Elizabeth Collins being old and infirm, and that Joseph Collins will spend the purchase money paid for said slaves, and depart the State, unless restrained by the process of the Court.

We should deem it a waste of time to show by argument, that the bill is overladen with equity. Was there ever a case where the interference of a Court of'Equity became more inclispensible to secure the preservation of property to the uses and ends to which it was appropriated by the former owner; and where the danger of its being converted to other objects, was more manifest? It is not a mere probability, the casus belli has happened; the property is already wasted.

2d. The second complaint is, that there was no oath made to authorize said orders.

The verification was in the usual form of affidavits appended to bills in chancery. Bills of quia timet are in the nature of writs of prevention at common law; and were intended to accomplish the ends of precautionary justice. And it is enough that the party states and swears that he apprehends loss. The party seeks the aid of a Court of equity, because he fears (quia timet) some future probable injury to his rights or interests. Here the injury, we fear, has already occurred. The affidavit to the bills is sufficiently certain.

3d. For the sake of brevity and to avoid repetition, I shall group together the substance of many of the remaining grounds in the motion. They bring up the main points in the case.

It is said, that theorders which are sought to be annulled, were unauthorized by law, and improvidently granted ; that the last order was granted without any process of attachment as required by the first, and without any opportunity given to Joseph Collins to show he was not in contempt; that the Sheriff was required to take and hold the negroes of which Elizabeth Collins has control, as well for the payment and forthcoming of the two sold, as for those of which she has the possession; that Joseph Collins is required to give bond for the forthcoming of the two negroes sold or proceeds of sale.

In reply to all this, we would remark, that perhaps it is true in England, that under a bill of quia timet, no writ can issue to seize the property; that the Courts there operate upon the person by way of attachment, and in this way, work out the end to be attained, namely, security to the party in peril. This is a vexed question, however, and one that has been much litigated, especially by the Courts in this country. The insular situation of Great Britain, may have much to> do with this matter. Shut in within the four seas, parties cannot escape readily, the process of the Court. Here it is very different. Not only are the different States separated from one another, by an imaginary line, but this is true of the United States themselves, as it respects neighboring powers. The facility of evading the slow process of attachment, makes this procedure, therefore, of very doubtful efficacy in this country. One thing is certain, namely, that a Chancellor in England, where property, the right of enjoyment of which is future or contingent, is in danger of being diverted or squandered, it will take it into its own hands, or secure it in such other way as the Court may, in its discretion, under a'll the circumstances, deem best fitted to the end, and we hold, that the Superior Courts in this State, and the Judges thereof, exercising chancery jurisdiction, possess the same power. Common law remedies, such as bail-attachments, &c., are provided by statute, and are supplied from time to time, as the emergencies of the case may demand. In the main, however, the Legislature looks to the Courts to mould their equitable proceeding to prevent mischief, and to afford adequate relief to parties. Upon these general views, therefore, we should reluctantly interfere, to control the discretion of the Chancellor, unless flagrantly abused in a case like this. Instead of answering the bill, the defendants have seen fit to contest it on technical grounds. They are not entitled to the special indulgence of a Court of Equity, under such circumstances.

It has occurred to this Court, that the symetry of the law would be best maintained by simply requiring of the defendants in the first instance to give bond with sufficient security to stand to, abide by and perform the final decree to be rendered in the case. This would afford ample protection to the complainants, and less than this could not be required of the defendants, and upon failing or refusing to do this, the property should be taken into the custody of the Court, to be managed by its own agents and officers. We shall extend this privilege to the present defendants. Upon the case made by the bill, the jury would decree, that the two negroes sold, or their proceeds, be secured to the remainder-men, at the death of the tenant for life, and this obligation should be imposed upon both Elizabeth and Joseph Collins, in as much as they are in pari delicto, as to this transaction, and Elizabeth Collins should be compelled to give bond and security for the forthcoming of the other slaves in her possession, at her death. But we are anticipating unnecessarily, as we have no doubt that the right judgment will be rendered by the proper tribunal, in the premises, and if the bond is now substituted, which we suggest, it would afford ample security, that the decree will be performed.

4th. The ground that Joseph Bond was not a proper party to the bill, and that he could not be brought to the county of Wilkes, but should have been sued in Columbia, the county of his residence, is abandoned.

5th. The next objection is, that both of the defendants are required to give bond for the proceeds of the sale of the two negroes mentioned, when it does not appear which, if either, has them.

Elizabeth and Joseph Collins, were joint in the breach of trust; were confederates in the illegal transaction. It is meet and proper therefore, that they should be held jointly liable for the consequences.

6th. Another irregularity complained of is, that the showing made to the Chancellor, on which he granted the second order, does not appear in the proceedings, and that the oath of Quinn mentioned in said order, has not been filed or attached to the pleadings, nor has it been shown to the defendants.

It is recited by the Chancellor, in the second order, that he had received information on the oath of B. J. Quinn, that Joseph Collins had acknoledged service of the original bill and order; and thus he and Elizabeth Collins, up to that time, to-wit, the 31st day of July, 1857, were in default in complying with said order. The substance of the oath is contained in the recitals of the second order, whether any record of it was made, does not appear. Its truth has not been controverted,.and that is enough.

7th. Again, it is suggested parenthetically, rather than alleged, that it is not charged in the bill, neither does it appear by proof, that Elizabeth Collins has control of the slaves in which she has a life estate.

The bill charges expressly, that “all of the negroes were, by the executors, put into the possession of Elizabeth Collins, as the estate of'Gibson Collins” (the testator,) “was wound up, and there remained until some short time since, when the said Elizabeth Collins, disregarding the rights and interests of your orators and oratrixes, placed two of the negroes, Richmond. and Felix, both valuable men, in the hands of Joseph S. Collins, to sell the same and pay the debts, &c.”

This extract from the bill is a sufficient, and the best reply to the objection.

8th. The only remaining ground is, that the bond is required to be given to those entitled to the proceeds, without stating who they are, and which cannot be known until final decree. It is a trite maxim, that that is certain which can be made certain. The complainants in the bill, whose names are set out, “allege and charge, they are in the manner above stated, interested as remainder-men, and have been injured and damaged in their remainder rights, as above charged, &c.”

Of course, then, they are the persons entitled ultimately to the proceeds of the sale of the two negroes conveyed to Riley, and are the obligees of the bond.

Judgment affirmed.