Colter v. Livingston

Hines, J. (After stating the foregoing facts.) The contest in this case is over the ownership of, and the right to control, the execution involved in this litigation. The plaintiffs claim title to this fi. fa. under mesne transfers from the original plaintiff in fi. fa. unto themselves. The defendant' Colter claims title to this execution under like transfers. Both claim under Jane Warren, who was the holder and owner thereof under a previous transferee and owner of the fi. fa. Colter claims title to the execution under a transfer which was signed, “ Mrs. M. J. Warren, by J. C. Warren ” (Mrs. M. J. Warren being the same person as Jane Warren), which transfer antedates the transfer under which the plaintiffs claim. The transfer to the defendant is attacked by the plaintiffs on the ground that it was made by J. C. Warren without authority from Jane Warren and without her knowledge and consent. The trial judge was authorized to find that this was true, and that the plaintiffs were the owners of this fi. fa., and entitled to control the same. The plaintiffs did not wish the property sold which was levied upon under this fi. fa. and advertised for sale by the sheriff, because they had a junior mortgage on this property, which, due to the existing financial depression, would be sacrificed by the sale at the time, and because the defendant was their tenant, who could not make his' crops during 1922 if he was deprived of his property by its sale under this execution. 1. Did the plaintiffs, assuming that they were the true owners of this execution, as the trial judge was authorized to find under the proof, make a ease for injunction? The Civil Code, § 5490, [406] declares: “Equity, by a writ of injunction, may restrain proceedings in another or the same court, or a threatened or existing tort, or any other act of a private individual or corporation, which is illegal, or contrary to equity and good conscience, and for which no adequate remedy is provided at law.” It would be illegal for the defendant Colter, if he was not the owner thereof, to take control of this fi. fa., have it levied upou the property of the defendant in fi. fa., and have the same sold contrary to the wishes and against the interest of the real owners. The holder and owner of a fi. fa. can proceed' to make the money thereon by levy and sale, or he can desist from taking such action, either to indulge- the debtor, or because he thinks it to his interest to delay such action for any reason. While the defendant in execution could not enjoin the sale of his property, when levied upon to satisfy a judgment against him, on the ground that it would be sacrificed if sold under existing financial depression (Robinson v. Thompson, 30 Ga. 933), the plaintiffs, as owners thereof, could delay action if they were of the opinion that the property wordd bring more if the enforcement of the fi. fa. was delayed. 2. But the plaintiffs would not be entitled to the writ of injunction if they had an adequate remedy at law; and it is insisted that they had such remedy. In the first place, it is insisted that they have such remedy by a rule to distribute the money arising from the sale of the property by the sheriff. This would be true if the plaintiffs were seeking'to make the money on their execution. Rucker v. Tabor, 133 Ga. 720 (66 S. E. 917); Hardwick v. Cash, 140 Ga. 608 (79 S. E. 532). But the plaintiffs did not wish to enforce their fi. fa. Eor reasons sufficient unto themselves, they did not want to enforce it. Eor selfish, if not for generous, purposes they did not wish the property of their judgment debtor sold. Eor this reason the remedy referred to in the above cases would not accomplish the aim of the plaintiffs. The defendants next insist that the plaintiffs would have an adequate remedy at law against Jane Warren, who transferred this execution to them, for breach of her implied warranty of title, if it should turn out, in a rule to distribute funds arising from the sale of the property levied upon, that she had no title to the fi. fa. Civil Code (1910), § 5348. But if she had’ title to [407] the execution which she transferred to the plaintiffs, then the plaintiffs would have no recourse on her. It may be said that the plaintiffs would have an action for damages against the defendants for any wrongful interference with the plaintiffs’ right to this execution; and that for this reason they were not entitled to injunction. The fi. fa. being regular upon its face, and it being the duty of the sheriff to make the money thereon, the sheriff would not be a trespasser. Hall v. Lyon, 37 Ga. 636; Harris v. Black, 143 Ga. 497, 500 (85 S. E. 742). Have the plaintiffs an adequate remedy by an action for damages against the defendant Colter, for wrongful interference with the rights of the plaintiffs, if the latter are found to be the true owners of this fi. fa.? If the injury is irreparable in damages, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary, an injunction will be granted. Civil Code (1910), § 5493. .An irreparable injury arises where the person injured “cánnot be readily, adequately, and completely compensated” with money, or when the damages which may result from a tort cannot be measured by any certain pecuniary standard. Camp v. Dixon, 112 Ga. 872 (38 S. E. 71, 52 L. R. A. 755). Under the peculiar facts we think they make a case of irreparable injury, because the damages cannot be fixed by any certain money standard. The writ of injunction is required to fully protect the plaintiffs; and for this reason it cannot be urged that there is an adequate remedy at law. Knight v. Knight, 28 Ga. 165. 3. Counsel for the defendants assert that the record discloses that the plaintiffs have no title to this fi. fa., and that for this reason they are not entitled to an injunction. They base this contention upon the principle that it takes delivery of goods to make a sale perfect. Civil Code (1910), § 4125; Fleming v. State, 106 Ga. 359 (32 S. E. 338). This is the general rule in the sale of goods; but in such a ease delivery need not be actual. Constructive delivery may be inferred from a variety of facts. Any plaintiff may bona fide transfer any judgment or execution to a third party. Civil Code (1910), § 5969. To pass the legal title by the plaintiff in execution, there must be an indorsement or assignment thereof in writing. Anderson v. Baker, 60 Ga. 599; Jones v. Hightower, 117 Ga. 749 (45 S. E. 60); Screws v. [408] Anderson, 124 Ga. 361 (52 S. E. 429). Delivery is not essential, if tbe intention of the plaintiff in fi. fa. was to pass the title to the transferee. Bnt the transfer under which the plaintiffs claim was in writing, indorsed upon the fi. fa. itself; and from this fact possession of the fi. fa. by the plaintiff in fi. fa. and the delivery of the latter may be inferred. 4. Finally the defendants urge that a chose in action arising in tort is not assignable (Civil Code (1910), § 3653; Central R. &c. Co. v. B. & W. R. Co., 87 Ga. 386, 13 S. E. 520); and that the transaction by which the plaintiffs acquired this execution was champertous; on both of which grounds they contend the plaintiffs acquired no title thereto. Wo fail to see the application of these doctrines to the case at bar. Even a judgment based on tort is transferable, while the action for tort is not assignable. It is not champertous to take the transfer of an execution to which another lays claim. This transfer was not acquired pendente lite. If it had been, the plaintiffs would acquire title, but subject to be concluded by the result of the litigation. Swift v. Dederick, 106 Ga. 35, 38 (31 S. E. 788). In other words, they would have been concluded by any judgment rendered in the pending suit against the party to the suit under whom they claim. The taking of the transfer of an execution after levy, and pending the advertising of the property levied upon for sale, is not champertous. So we are of the opinion that the wise judge below did not abuse his discretion in granting a temporary injunction in this ease. Judgment affirmed. All the Justices concur.