Fisher v. Graham

Cobb, J.

The petition set forth a cause of action, and no sufficient reason was stated in the demurrer either of Fisher or his wife why the injunction should not have been granted. It was distinctly provided in the agreement which was a part of the verdict and judgment rendered against Fisher that “ if, after the last instalment becomes due as aforesaid, there shall be any balance due on said indebtedness, plaintiffs may levy and sell whatever remains unsold of said lands, or any other property of said defendant.” The last instalment fell due in 1899, and was not paid. The present petition was filed in 1901, at which time, under the very terms of the agreement, Graham had a right to proceed to sell for the purpose of paying the debt due him all of the property described in his security deed, in any manner authorized by law, provided the sale of the whole of it was necessary for the purpose of paying his-debt. Under the allegations in the petition it is necessary to sell all of the lands still unsold, and it certainly does not lie in the mouth of Fisher to say that Graham shall not proceed to collect his debt-in the manner authorized by law, when, under the averments in the petition, he and his wife have interposed every obstacle within their *855 power to the collection of his debt when he was seeking to collect the same in the manner in which it was provided in the agreement that it should be collected before the maturity of the last instalment. There was equity in the petition, and the court did not err in so holding. In the demurrer of Mrs. Fisher it was set up that as she had interposed a claim to a portion of the land levied on and had given the bond required by the statute in claim cases, conditioned to pay to the plaintiff such damages as the jury might assess in the event they should reach the conclusion that the claim was filed for delay only, she was entitled to atrial of her claim case, and the remedy of the plaintiff, if she was not the owner of the land and the claim was interposed for delay only, was to ask for damages when the claim case should be tried. It was said in the argument that a receiver to collect the rents of the property in such a case was not necessary, and that this court had never held that a receiver would be appointed for the purpose of collecting the rents, except in a case where the claimant had not given the bond and had interposed her claim in forma pauperis. "We do not think that in a case in which a claim is interposed to property levied on, where the plaintiff in execution is in equity entitled to the rents of the property, the remedy upon the claim bond to ask that the jury assess damages for the delay is at all adequate for the plaintiff in execution. It is legally possible for the jury to find that the claim is unfounded, and at the same time to reach the conclusion that the claim was interposed in perfect good faith. In such a case, if the litigation is protracted and the claimant is insolvent, the plaintiff has no remedy whatever for the loss resulting to himfrom the rents being collected by a person who is not able to respond. We think that the right of the plaintiff in execution to a receiver in such cases is dependent, not upon the ability of the claimant to give the claim bond to answer for damages in the event the claim was filed for delay only, but upon the ability of the claimant to respond in an action for the rents, issues, and profits collected by him which in equity belonged to the plaintiff in execution. This, we think, was the view entertained by this court in the case of Wilkins v. Gibson, 113 Ga. 31 , where the claim was interposed by persons who were perfectly solvent; and while it was held that the plaintiff in execution was entitled to an accounting, it was ruled that a receiver would not be appointed, because the claimants were solvent, thus *856 clearly intimating that if the claimant were insolvent the court would be authorized to appoint a receiver to collect the rents pending the litigation.

It is contended that the court erred in granting an injunction, and appointing a receiver, because the equitable petition of the plaintiff was one merely in aid of his levy, that to this levy an affidavit of illegality had been filed, which was overruled at the trial, and that a bill of exceptions was pending in this court, assigning error upon the judgment overruling the illegality,,and that so long as the case was undisposed of the plaintiff in execution had no right to proceed with any other remedy. We do not think this position is well taken. The fact that an affidavit of illegality has been overruled and a bill of exceptions filed carrying the case to the Supreme Court, where there will necessarily be delay in determining the question, instead of being a reason why equity would not interfere in behalf of the plaintiff, is itself a good reason for its interference by the granting of an injunction and appointing a receiver, in view of the allegations made in the petition. It is also claimed that the plaintiff in execution is estopped from claiming that the value of the land is less than the amount of the debt, by the stipulation in the agreement that the defendant in execution should have a right to sell portions of the land at private sale at four dollars per acre,the price so fixed being, as contended, the true value of the land, and both parties being bound by the stipulation that the land is worth that much. Even if the parties were bound by this stipulation at the time the agreement was entered into, and could not say that the land was worth less than the amount so fixed, they were not bound by that stipulation certainly after the last instalment became due and remained unpaid. At that time, as has heretofore been shown, the plaintiff in execution was entitled to pursue any remedy to collect his debt which the law provided. While the evidence on the question of the insolvency of Fisher was directly conflicting, we think that there was evidence from which the judge could find that he was insolvent within the meaning of the rule laid down' in Cohen v. Parish, 100 Ga. 338 , which was, in substance, that, if the value of the person’s property •is not sufficient to discharge all of his debts, such person is insolvent. It is true that some of the witnesses for the plaintiff based their opinion on the value of the property upon what it would *857 bring at judicial sale, and it is contended by counsel for plaintiff in ■error that this is not a correct test to be applied. It seems to us, however, that where the person who is to be affected by the question as to whether another is solvent or insolvent is óompelled to report to a judicial sale in order to realize on his debt,- the value of the property as tested by a judicial sale is a very important matter to be inquired into in determining whether his debtor is solvent or insolvent. While what the property would bring at judicial sale is not absolutely controlling on the question of what is the market value of the property, still it is a circumstance to be considered in ■determining the question as what is the market value, and in a case like the present is a very important one to be considered. Under this view of the case there was abundant evidence from which the judge could find that the market value of the property was less than the debt for which it stood as security. After a careful examination of the record and the briefs filed, we are satisfied not only that the judge did not abuse his discretion in granting an injunction .and appointing a receiver, but that this was a proper judgment to .be rendered in the case.

Judgment affirmed.

All the Justices concurring.