Ford v. Tifton Guano Co.

Evans, P. J. (After stating the foregoing facts.) The plaintiff does not allege sufficient facts to justify an equitable foreclosure of its mortgage, or an equitable intervention against the wife’s processes to collect the amount claimed from her husband as due for rent and supplies. Mrs. Ford foreclosed a distress warrant and a lien for supplies against her husband, and these processes were levied by the sheriff of the county. The plaintiff has a mortgage on some of the crops. Instead of foreclosing its mortgage, and placing the mortgage fi. fa. with the levying officer, it resorts to equity. If it had foreclosed its mortgage and the crop had been sold by the sheriff, the respective rights of the claimants of the fund could have been expeditiously and completely settled in a rule to distribute the fund. Smith v. McPherson, 78 Ga. 84. Why attempt a resort to equity? The facts do not show any necessity for an equitable foreclosure of its mortgage. If the relation of landlord and tenant between the husband and wife be collusive and not real, such fact could be shown in a proceeding to distribute the money, so as to give priority to the plaintiff’s mortgage. Any disposition or despoliation of the mortgaged property may be prevented by the plaintiff’s foreclosure of its mortgage. The allegation that Walter Ford worked the farm with two croppers is not sufficient to sustain the petition on the theory [356] of avoidance of a multiplicity of suits. Process is neither prayed nor issued against them. It is alleged that these croppers owe Walter Ford about $200, and it is not even hinted that their interest would be more than sufficient to pay this sum. Besides, these croppers are not attempting or even threatening to foreclose any lien for labor, notwithstanding the crops are levied on by virtue of Mrs. Ford’s liens. Even should they foreclose their laborers’ liens, their rights could be settled in the rule to distribute the proceeds of the sale. The plaintiff’s sole appeal for an equitable foreclosure is that the wife’s claim of lien for rent and supplies is fraudulent. This charge is based on the allegation that the husband and wife conspired to defraud the plaintiff by allowing the husband to hold out the land as his property, and. to create the belief that he was the actual owner of it. There is no specific statement of facts covering the alleged conspiracy, nor any contention that the wife personally made any misrepresentations to deceive the plaintiff. Even if such allegation be deemed, as against a general demurrer, a sufficient charge that the wife’s liens are fraudulent, this alone would not entitle the plaintiff to an equitable foreclosure of its mortgage. There is no allegation that the crops are insufficient to pay all contending liens. The plaintiff declares that its mortgage also embraces crops of Ford not raised on Mrs. Ford’s land; and it is not alleged that they are insufficient to pay the debt. Mrs. Ford is not alleged'to be insolvent. The extraordinary remedy of injunction and receiver is a harsh one; and the rule is clear that it is not available except where the ordinary remedies are1 ineffectual or inadequate. The plaintiff admits that the property is in custodia legis, and that its mortgage is ripe for foreclosure. No obstacle lies in the way of its summary foreclosure as provided by statute. If this had been done, and the mortgage fi. fa. had been placed with the sheriff, the property would have been as securely preserved to the payment of liens against it as it would be in the hands of a receiver. There is no need of protection against possible loss by a change of the legal custodian. The plaintiff’s ordinary remedies afforded it ample relief, and the court erred in overruling the demurrer to the petition. As the petition should have been dismissed, the subsequent trial was not authorized, and any verdict rendered therein is a nullity. Judgment reversed. All the Justices concur, except