Douglas v. Jenkins

• Decision Date: 19 December 1916
• Docket Number: 200.
• Citation: 91 S.E. 49,146 Ga. 341
• Parties: DOUGLAS v. JENKINS.
• Court: Georgia Supreme Court

91 S.E. 49

146 Ga. 341

DOUGLAS v. JENKINS.

No. 200.

Supreme Court of Georgia

December 19, 1916

Syllabus by the Court.

The court erred in granting the injunction. When that part of the petition which was based upon the theory that the fi. fa. (against the enforcement of which injunction was sought) was a cloud upon the title of plaintiff was stricken upon demurrer, to which ruling there was no exception, the only purpose that an injunction could serve would be to prevent enforcement of the execution by levy; and relatively to this branch of relief sought, the plaintiff will have an adequate remedy at law, when a levy of the execution is actually made by filing a claim as provided by statute.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by M. K. Jenkins against E. L. Douglas. Judgment for plaintiff, and defendant brings error. Reversed.

Lee Douglas, of Atlanta, for plaintiff in error.

E. M. & G. F. Mitchell, of Atlanta, for defendant in error.

GILBERT J.

Jenkins filed an equitable petition to enjoin Douglas from paying off a debt secured by a loan deed to a city lot and from thereafter levying a certain execution upon the land. The allegations of the petition are in substance as follows Jenkins and Corley, as tenants in common, possessed a certain city lot, each owning one undivided half interest. They executed to Barton a deed to this lot to secure a loan, and held a bond for title for its reconveyance upon the payment of the loan. On June 6, 1913, Corley, by a written transfer conveyed to Jenkins, for a valuable consideration, his bond for title interest in the lot, Jenkins assuming the entire indebtedness against the lot. In this transaction there was a balance due Corley by Jenkins of $200, which was not paid until November 6, 1913, at which time Corley executed a deed conveying his half interest in the lot to Jenkins. This deed was recorded January 12, 1914. On June 13, 1913, Douglas brought suit against Corley for an alleged indebtedness in no way connected with the transactions referred to above, and on July 8, 1913, obtained a judgment against him. An execution was issued on this judgment, and it is this execution that Jenkins alleges Douglas is threatening to levy upon the undivided half interest of Corley in the city lot originally owned jointly by Jenkins and Corley, after he has first paid up the loan on the said city lot. Jenkins prayed that this execution be declared void, and that it be canceled as a cloud on his title. Douglas filed a demurrer to the petition. The court overruled the demurrer in the main, but sustained that part of it which challenged the allegation as to the execution being a cloud on the title of Jenkins. Douglas excepted to the overruling of the demurrer in the main.

It will be observed that the petition does not allege that the execution has been levied, nor that the sale under it is about to take place, nor that the sheriff has the execution with the intention of levying, nor even that Douglas had paid off the Barton loan and procured a reconveyance of the legal title to Corley, or to Corley and Jenkins. The allegation in this particular is that Douglas is threatening to levy. It does appear, however, from the petition, that when Jenkins took an assignment of the equitable interest of Corley, he did not make payment in full, and he did pay $200 to Corley the balance due, after Douglas had obtained his judgment against Corley, and had properly recorded the same on the general execution docket.

"The extraordinary * * * remedy of injunction does not lie in favor of one who has a complete and adequate remedy at law." Johnson v. Gilmer, 113

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