Semmes v. Boykin

[51] By the Court. Benning, J. delivering the opinion. The Court below sustained the •demurrer to the bill. The question, therefore, is, was there equity in the bill ? It may bo assumed, that there was equity in the bill, if the facts stated by it, were such as to show, that Semmes had the right, to compel Boykin to seek satisfaction of his fufa, in whole or in part, out of some of the funds other' than the fund raised by Semmes under his mortgage. Those funds were the $4,000 paid by Holt as administrator of Leitner, to Mrs. Boykin ; the money raised by the Boykin fi.fa. itself j the money raised by the other fufas ; the interest of Taylor in the gin factory. Were the facts of the bill, then, such as to show, that Semmes had 'this right ? [1.] First, were they sufficient to show, that he had the right to compel Boykin, to seek satisfaction of his fu fa., in whole or in part, out of the $4,000 paid to his intestate, Mrs. Boykin, by Holt, as the administrator of Leitner ? At the time when Holt thus paid the $4,000 to her, she held two debts against his intestate, Leitner, viz: one, a debt against Leitner as principal, and Taylor as surety, it being the debt on which the Boykin fi. fa. aforesaid against Taylor, is founded; the other, a debt secured by a mortgage on Leitner’s interest in the Coweta Falls Manufacturing Company. It is admitted, and is no doubt true beyond question, that if, when Holt paid this money to her, he directed her to apply it to the satisfaction of the former debt, in whole or in part, it was her duty so to apply it Now, he did, in fact, give this direction. The allegation in the bill, is, that he placed this sum, in her hands, u for the express purpose of being applied to the satisfaction of the said debts of the said Leitner, due to the said Boyltin one of them being, the same debt upon which, the said fufa. was issued against the said Taylor.” Consequently, it was [52] her duty to apply the sum, in part, to the payment of the former debt; and such an application of the money, if made, would, pro tanto, be a satisfaction of the fi.fa. against Taylor, as lie was only a surety for the debt. What part of the $4,000, was it, that was to be so applied? Doubtless, a part proportioned to the part to be applied to the mortgage debt. What then was the part to be applied to the mortgage debt? That depended on a question, viz: whether in stating the proportion, the mortgage debt was to be taken at its full amount, or taken only at the balance of that amount remaining after the mortgaged property had been applied to it. This is a question, which it is not necessary to determine, as, whichever of the two things it be that is true, it is certain, that some part of the $4,000, was to be applied to this debt on which Taylor was surety; and, if any part was to be so applied, that gave Semmes an equity. Consequently, we do not determine the question. We think, it proper, however, to say, that we incline to the opinion, that the balance of the mortgage debt was all that was tobe taken in stating the proportion, for an Act of 1845, declares, “ that in the payment of the debts of any deceased person or persons, no debts secured by mortgage, shall be entitled to any priority over any other debt of equal degree, except so far as relates to the property mortgaged;” (Cobh 297,) and we rather suppose, that permitting the whole mortgage debt, first to share with the other debt in the $4,000, and then, to appropriate to itself, the whole of the mortgaged property, would be a violation of this act. Secondly, were the facts in the bill, sufficient to give Semmes the right to require Boykin, to take any part of his pay of the old fi.fa., out of the other money in the hands of the Sheriff, viz: the money on which the judgments younger than Semmes’s mortgage,had a lien? We think they were. [2.] In the eye of equity, all creditors are equally meritorious, and, therefore, equity, if left to itself, makes no discriminations among creditors, but puts them all on the same [53] footing. Semmes, then, and these younger judgment creditors, must be permitted to stand on the same footing, with respect to the Boykin fi.fa. which is older than his mortgage, and, older than their judgments. Consequently, Semmes has the right to require, that this fi.fa. shall not take the entire pay of what may remain due on it after the proper part of the Leitner $4,000 has been applied to it, out of the fund raised by his mortgage, but shall take a part of such pay, out of the fund on which the younger judgments have a lien; he has the right to insist, that these two funds shall contribute, proportionately, to the satisfaction of such balance due on the Boykin fi.fa. The result of what has been thus far said, is, that there was, in our opinion, equity in the bill in two respects ; first, an equity to compel Boykin to take part satisfaction of his fi.fa.,,out of the $4,000 paid by Holt to Mrs. Boykin ; secondly, an equity to compel him to take part satisfaction, out of the money on which, the younger judgments had a lien. Thirdly, were the facts in the bill sufficient to give Semmes the right to require Boykin, to go first on the interest of Taylor in the gin factory, for satisfaction of the old fi.fa ? And? we think, that they were not. [3.] It is obviously more advantageous to Boykin, on several accounts, to let him take satisfaction of his fi.fa., out of ready money, (the fund in the hands of the Sheriff,) than, to send him to raise a sum out of Taylor’s property, from which to get the satisfaction. What equity has Semmes to ask, that Boykin shall be compelled to forego this advantage, which the law gives him ? We know of none. The most that Semmes could ask, would seem to be, that Boykin should be compelled to transfer to him, the fi.fa., on his paying Boykin what was due on it, so that he, Semmes might, if he chose, try to make the money due on the fi.fa., from the interest of Taylor in the gin factory. So much for the demurrer. We think the Court erred in not overruling it. [54] The bill was a sworn bill on which* an injunction had been granted. The offered amendment, was, doubtless, offered as an amendment to warrant the continuance of the injunction. Such an amendment ought, we think, to be sworn to. Certainly to require it to be sworn to, is no abuse in the Court of the discretion it has, as to amendments. We see no error, then, in the refusal to admit the unsworn amendment. • Judgment reversed.