Ponder v. Cox

28 Ga. 305

• Court: Supreme Court of Georgia
• Decided: May 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

We hold the court was right in refusing to dissolve the injunction and dismiss' the bill as amended by the complainant.

When the case was up before, our judgment was, that the bill, as it originally stood, could not be sustained. We suggested, however, that it [might be made a good bill, provided the complainant could allege, under oath, that there was threatened or impending wrong to his rights, by reason of the insolvency of Ephraim Gr. Ponder, or his removal beyond the jurisdiction of the State.

The amendment shows that Ponder, by a post nuptial settlement, has conveyed the whole of his property to a trustee, in strict settlement upon his wife and offspring, provided there be any, and that he has removed from Thomas to Eulton county. This conveyance, although voluntary, is good against him. True, the trust property may be made subject to contracts existing at the time of the settlement, but under all the facts of this case, should Cox be driven to further litigation, to re-imburse himself upon his covenant of title, should he lose the negro ? We think not. It would be to deprive his common law remedy of one-half, at least, of its adequacy and completeness. Ephraim G. Ponder is without property; and the legal title to that which he did hold is vested in another.

There is another equity, not formally assumed in the bill, but which the facts stated presented strongly for the consideration of chancery. Long before Cox may be able to get a judgment upon his warranty, this property may be disposed of by the trustee, who holds the legal title, so as to put it beyond the reach of any recovery over, which might be had against Ponder. The injunction in this case, as in many others, subserves the purpose of a Quia Timet bill.

Upon the whole, considering there are two proceedings now pending, namely, the application of Price, the negro, to establish his freedom, and the plea of the failure of consideration of the note given by Dyson to Ponder, for the negro, and which is sued on — one or both of which will decide whether it will be equitable or not to collect this judgment out of Cox — it is best to retain the bill and injunction until this matter is decided.

Judgment affirmed.