Peyton v. Lamar

McCay, J. We do not care to go into the question of the validity of this mortgage. Our Code in declaring what things may be mortgaged does not declare that other things may not be: Code, section 1944. Nor are we sure that, under the facts of this case, this mortgage is not within, at least, the equity of the last clause of the section we have referred to. Besides, the recognition of this mortgage by the parties after the property had fully come into their possession, would make it valid, even if there be doubts about its original validity. There might, perhaps, questions arise between Lamar and subsequent purchasers of this property, or between him and the sellers of it, claiming a right of stoppage in transitu. The former class might claim that they were not bound to look on the record for mortgages dated before the title of the mortgagors accrued, and the latter would have a very high equity against the mortgagee. But the present complainant has no interest at all in this property. He is a simple creditor; he has not- even a judgment lien. If Lamar were enjoined what good would it do him ? The owner of the [134] property could next day sell it and pay Lamar, or give him another mortgage, or sell it and put the money in his pocket, and the whole machinery of an injunction and a bill in equity would end in smoke. We have decided at this term, in the case of Cubbedge & Hazlehurst vs. Adams, that, as a-general rule, a simple creditor, who has no lien on the property, cannot enjoin his debtor from selling it, nor come into equity to ask its interference to preserve it until he can get a judgment. There are some peculiar cases where equity will interfere, but they stand upon their own facts. The case of Cohen vs. Meyers, at this term, was one of these. In that case it was charged, that the debtor had fraudulently procured the property from the plaintiffs, with intent not to pay for it, and that the vendee or nominal possessor knew of this. And it will be found, that all the cases, where this rule has been broken into, have turned upon peculiar circumstances, and the complainant had, in fact, an equitable interest in the very property he was pursuing. The general rule is fully discussed in 2d Johnson Chancery, 444. The case in 36 Georgia, 534, was of a married woman who contracted for the goods in Tennessee, as a free trader, under their law. She could not be sued here at law, and the goods had been purchased from the complainant. The facts showed so gross a case as justified the inference that the purchase was fraudulent. We do not intend to lay down any positive limit to the right of injunction in such cases, but, tó give the Court jurisdiction, there must be some other equity than the mere existence of a claim and a probability that the defendant will not apply his effects towards the settlement of it. Judgment affirmed.