Fears v. State

• Decision Date: 10 August 1897
• Parties: FEARS et al. v. STATE.
• Court: Georgia Supreme Court

29 S.E. 463

102 Ga. 274

FEARS et al. v. STATE.

Supreme Court of Georgia

August 10, 1897

Syllabus by the Court.

1. A right of property in spirituous and malt liquors exists under the law in all the counties of this state, and this property is subject to a judgment against the owner in like manner and to the same extent as other property.

2. The act approved September 18, 1885, to provide for preventing the evils of intemperance, etc., does not, by its terms, or by necessary implication, apply to sales of such property under judicial process in a county where the terms of such act have become applicable by virtue of an election held as prescribed in the act.

3. A sale in a proper manner, and with a bona fide purpose on the part of the officer to obey the mandate and accomplish the legitimate design of process in his hands, is not repugnant to the provisions of the act above referred to, nor to the provisions of our statute law which prohibits the sale of such liquors without license. Being authorized by the general law of the state, such a sale is not of itself such a public nuisance in any county as may be enjoined by a court of equity.

4. If two persons, colluding with each other to evade a statute prohibiting the sale of such liquors in a particular locality, in pursuance of such collusion enter into an arrangement by which one, just before the expiration of the license under which he could sell, adds to his stock large quantities of intoxicating liquors, executes to the other a mortgage on such stock, and suffers a foreclosure thereof and the issuance of an execution thereunder, which the mortgagee causes to be levied upon such liquors, and is proceeding under the guise of a process to sell and continue the sale of such liquors in small quantities, and at retail from day to day, such sale would be an abuse of the process and should be enjoined; or, if an officer in whose hands such a process has been placed is proceeding under color thereof and in furtherance of such collusion, whether innocently or otherwise, to conduct what is really a private sale of such liquors, even though conforming to the usual forms of an execution or judicial sale, thus indirectly prostituting what would otherwise be legal process, to the accomplishment of an illegal end, the sale would be illegal, and a court of equity, while giving full effect to the right of the creditor to subject the property of the debtor to payment of the judgment, will not permit a sale to be so made.

5. The court has always the power in judicial sales to regulate the manner of such sales, and, in execution sales, also the power, for fraud, mistake, or irregularity, to control, and even set them aside, in its legal discretion.

(a) The decision in this case having been rendered on an erroneous view of the law, and, as stated by the judge, without the exercise of discretion as to the circumstances attending the proposed sale, the judgment, for the cause stated, is reversed.

Error from superior court, Morgan county; John C. Hart, Judge.

Information and petition by H. G. Lewis on behalf of the state against H. C. Fears, sheriff, and others, for an injunction, which being granted, defendants bring error. Reversed.

The court has the power, of fraud, mistake, or irregularity, to control, and even set aside, execution sales, in its legal discretion.

The following is the official report:

On May 18, 1897, H. G. Lewis, solicitor general, brought his information and petition in behalf of the state to the superior court of Morgan county against H. C. Fears, sheriff, Edgar Fears, deputy sheriff, L. B. Chambers, and William Cochran, for injunction. The court granted an injunction, and the defendants excepted.

The petition alleged: On August 6, 1896, an election was held in said county under the general local option laws of the state, and resulted in a majority "against the sale" of all intoxicating liquors in the county, which result was declared by an order passed by the ordinary on August 8, 1896, and duly published for four consecutive weeks following the order; and by virtue of said election, order, and publication it became, from and after that time, unlawful to sell any intoxicating, spirituous, vinous, or malt liquors within the limits of the county. At the time of the election said Chambers and Cochran were in the business of retailing spirituous liquors in the city of Madison, in said county. Chambers continued in business until January 1, 1897, and Cochran until April 29, 1897, at which dates the license of each expired. On or about January 1, 1897, Chambers removed to the storehouse of Cochran a large quantity of intoxicating liquors, which Chambers had left on hand at the expiration of his license, and for some time thereafter he was engaged in business in the barroom of Cochran. On April 13, 1897, Cochran executed to Chambers a mortgage, which embraced, among other things, brandies, whiskies, wines, and beers then stored in the barroom of Cochran. On May 8, 1897, Chambers foreclosed his mortgage, and the fi. fa. issued thereon was on that day levied upon said liquors by Edgar Fears, deputy sheriff of the county, who has advertised a sale of the same to commence on May 20, 1897, and to continue from day to day until all or a sufficiency of the property shall have been sold to satisfy the fi. fa. When Chambers received the mortgage and the notes described therein, and before Cochran had contracted to pay him the amounts named in the mortgage, they both knew that it had become unlawful for any one to sell liquors in the county, and also knew when the license of Cochran for such sale would expire. Cochran, shortly before the expiration of his license, had consigned to him large quantities of intoxicating liquors at a time when he must have known that in the ordinary course of trade he could not have disposed of them; and he thus added to his stock for the purpose of creating a larger stock of liquors to be sold at sheriff's sale upon the foreclosure of the mortgage. Since the levy of the mortgage fi. fa. Chambers and Cochran have had full access to the barroom where the liquors are stored, and have been engaged in drawing off liquors contained in barrels, etc., in the barroom, and putting the same in small bottles, varying from a half pint to a quart, for the purpose of bringing about at the sheriff's sale a retail of the liquors, and for the purpose of continuing the sale for days, and even, perhaps, weeks, until the stock is thus disposed of by retail. It is being advertised and currently reported throughout the county that the chief days of the sale will be Wednesdays and Saturdays. Unless the sale be enjoined by the court, it will continue from day to day and week to to week, and will thus bring together a large number of intemperate people upon the streets in the city, who will buy the liquor, and in small quantities, at public outcry, and many of them will drink the same, and doubtless become intoxicated upon the public highways, and thus disturb the peace, quiet, and good order of society. The primary purpose of giving the mortgage was to continue the sale of said liquors after the local option law had gone into effect in the county, and under the guise of a sheriff's sale, to evade the penalties of the law. Petitioner charged upon information that Chambers and Cochran were really partners in the sale of liquors prior to the expiration of the license of Cochran, and that in the execution of the mortgage they colluded together to increase the stock of liquors just previous to the expiration of Cochran's license, and to sell the same after its expiration. The sale of the liquors by the sheriff or his deputy is unlawful, and directly in violation of the local option laws of the state; and, besides, there is no authority of law for commencing the sale on the 20th instant, and continuing it from day to day. Even if the debt of said parties is a bona fide debt, yet they knew at the time it was created that it could not be enforced by a sale of liquors in the county, especially after the date of the expiration of Cochran's license. The sale, if allowed to proceed, will amount to a public nuisance, and will disturb the peace and quiet of the community at large. Chambers and Cochran were and are partners in the business of distilling spirituous liquors in the county; and shortly before the foreclosure of the mortgage large quantities of liquors from their distillery were stored in Cochran's barroom for the purpose of bringing about a sale of the same under the foreclosure of the mortgage, and these liquors are embraced in the sheriff's levy. Cochran is solvent, and there is no necessity for the sale of the liquors to pay his alleged indebtedness in the mortgage. Petitioner and the public at large will be remediless against the perpetration of said public nuisance unless the defendants are restrained by an injunction. Petitioner, waiving discovery, prayed for an injunction against the sale of the liquors, and for general relief. Attached to the petition as exhibits were a copy of the mortgage referred to, and a copy of the affidavit of foreclosure, the mortgage fi. fa., and the levy thereon.

Defendants demurred to the petition on the grounds that it was not verified as required by law; that there was no material allegation positively made and sworn to in the petition; that there was no equity in the petition; that the plaintiff has a complete and adequate remedy at law; and that there was no authority of law for the solicitor general to bring such a petition, and no law authorizing the bringing of such a petition. Answers were filed by the defendants, in which the allegations of the petition as to collusion on the part of defendants to evade the law were...