Lee v. Lee

• Decision Date: 31 August 1860
• Citation: 31 Ga. 26
• Parties: LEE. vs. LEE.
• Court: Georgia Supreme Court

31 Ga. 26

LEE. vs. LEE.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

In Equity, in Troup Superior Court. Decision by Judge Bull, at chambers, on the second day of February, 1860.

Charles S. Lee filed his Bill in Equity, in the Superior Court of Troup county, against Moses Lee, alleging: That in the years 1833 and 1834, and after that time, he paid off for his brother, the said Moses Lee, divers judgments, obtained in the Superior Court, and in the Justice's Court of Greene county, Georgia; that some of the judgments so paid off were obtained against the said Moses Lee alone, and some were obtained against the said Moses Lee, as principal, and the complainant, as security. That the complainant also, at the special instance and request of the said Moses Lee, paid off divers notes, accounts, debts, bank drafts, etc., against the said Moses Lee, on some of which the complainant was security for the said Moses Lee; that these debts, notes, accounts, bank drafts, etc., amounted in the aggregate to the sum of five thousand eight hundred dollars, or about that sum; that, before that time, the said Moses Lee had been largely indebted to the complainant, but the same was discharged in property, delivered by the said Moses Lee to the complainant. That, afterwards, Francis H. Cone and others obtained judgments against the said Moses Lee, amounting to a large sum of money, and caused the executions issued therefrom to be levied on the property so delivered by the said Moses Lee to the complainant, whereby the complainant was compelled to, and did, pay off the judgments to save his property; that said Moses Lee resisted the payment of some of these debts, on the ground that they were gambling debts, but, failing to sustain his defence by proof, judgments were obtained upon them; that, being about to remove from the county of Greene, complainant engaged the Hon. Thomas Stocks to act as his agent in taking up these debts and judgments, and having them transferred to the complainant; that said Moses Lee, being insolvent and unable to discharge the said liabilities, the complainant knew full well that he would have to grant to his brother long indulgence, which he was willing to do. That the said Thomas Stocks paid off and took up, as the agent of complainant, divers judgments and debts against the said Moses Lee, as principal, and the complainant and others, as security, but failed to have the entry of payment by the complainant, as security, made on saidjudgments; that said Thomas Stocks took up divers judgments against the said Moses Lee, which were transferred on separate pieces of paper; that the said Stocks, after exhausting the funds left with him by the complainant, for the purpose of paying off said debts and judgments against the said Moses Lee, advanced of his own funds by way of a loan to the complainant (and which the complainant afterwards refunded), and had some of the judgments transferred to himself, intending such transfer as a memorandum only of the amount so advanced and loaned to complainant, whilst the transfers were really intended for the complainant, and the fi. fas. were accordingly delivered by said Stocks to complainant, but without any written transfer of the same. That said. Stocks made out and delivered to the complainant a list of the debts and judgments thus paid by him, as the agent of the complainant, as aforesaid, which the complainant still has in his possession, and which shows the amount to be as hereinbefore alleged; that the said Stocks, in taking the transfers aforesaid, took them of the fi. fas., whilst it was intended by the parties to be a transfer and assignment of the judgments from which the fi. fas. issued. That complainant kept all these judgments and other liabilities, until the judgments became dormant, having perfect confidence in his said brother, or, at least, not desiring to press him with the law; that after all of the foregoing transactions, to wit: some time in the year eighteen hundred and forty—, the said Moses Lee was elected Clerk of the Superior Court of Troup county, and held the office for several terms, by means of which he acquired some more money than his immediate wants demanded and from time to time he advanced to the complainant sums of money for which the complainant gave his due bills; that on or about the third day of Febraury, 1845, for the sake of convenience merely, the complainant aggregated the amounts of said due bills up to that date, and gave his note to the said Moses Lee for twenty-four hundred and eighty-nine dollars and.twelve cents cash borrowed, it being intended by complainant and understood between him and the said Moses Lee, that the amount of said note should be applied, on a settlement, to the debts held by the complainant against the said Moses. That the said Moses subsequently intermarried with the daughter of one John H. Broughton, and received from him a considerable amount ofproperty, which, however, was only a loan by the father to the daughter; that some time thereafter, the wife of the said Moses died, and the said Broughton, who was also the father-in-law of the complainant brought suit against the said Moses Lee for the property so loaned, and the said Moses, suspecting that the complainant did not take sides with him in said lawsuit against his father-in-law, became offended, and, whilst the complainant, then being a citizen of the State of Alabama,. was on a visit to his said brother, he, the said Moses, deeming (as he said) all the debts held by complainant against him barred by the Statute of Limitations, instituted his action of Debt and Bail against the complainant, returnable to the February Term, 1851, of Troup Inferior Court; that complainant duly filed his answer and pleas to said action, proposing to set-off the aforesaid claims, held by the complainant against the said Moses. That, although the complainant did not, in his plea of set-off, set forth all the debts and judgments taken up and held, as aforesaid, he did set forth more than sufficient to cover the amount of said note, sued on in said action. That, when said cause came on for trial, on the appeal, in the Superior Court of Troup county, the complainant proved the payment of said debts and judgments, as aforesaid, and proved the facts hereinbefore set forth about the transfers, and proved by the said Stocks that the judgments and debts paid off by him, were paid off as agent of complainant, and that they were transferred, as aforesaid, for the reasons aforesaid, and that the judgments and debts really belonged to complainant, and, also, proved by one Edward Broughton, that in the year 1853, after said action was brought, that said Moses admitted to the complainant that he, the complainant, had paid the debts, specified in the amended plea to said action (a list of which was copied from the list furnished by Stocks, as aforesaid), amounting to four thousand nine hundred and twenty-seven dollars and thirty-two cents; that it had never been repaid; that it was still due, and he was willing to pay it. That, at the instance of said Moses Lee\'s counsel, the Judge, presiding at the trial, ruled, that the complainant could not set-off the claims and demands set forth in his pleas at Common Law, but that said demands, if available as a setoff at all, must be made so in a Court of Equity: 1. Because the judgments were not transferred. and that if thetransfer of the fi. fas. also carried with it a transfer of the judgment, yet the transfer being to Thomas Stocks, the legal title thereto was in Stocks, and not in the complainant. 2. Because the proof showed that the new promise made by said Moses Lee, was made after the suit was commenced, and that, as the claims were barred by the Statute of Limitations at the time the suit was brought, no right of action or setoff existed at that time; that said case was then continued by the Judge to give the complainant an opportunity to file this bill. That the said Moses Lee is sued by the said John H. Broughton for nearly all, or at least for the larger portion of the property in his possession—the suit for which has been once tried and determined against the said Moses, and which is continued only in consequence of an appeal, entered by the said Moses. That said suit in favor of said Broughton is still pending on the appeal, besides which there are large executions against said Moses, one of which is transferred to one Jesse McLendon, for several thousand dollars, and complainant believes and states, that if the said Moses is allowed to prosecute his said action on said note to final judgment, he will force the money due thereon from the complainant, and the complainant will be unable to get the amount due to him by the said Moses, when he obtains judgments thereon, and would thus be defeated and deprived of his just rights. That complainant, being able to prove the facts set forth in his bill, does not ask a discovery from the said Moses, nor does he wish to trust his case and the rights involved therein, to the conscience of the said Moses, if for no other reason, because during the pendency of said action in favor of said Moses against the complainant, testimony by interrogatories has been actually manufactured in every particular, even as to the witness, and the commissioners and facts, and offered as evidence for the plaintiff: That said Moses, when detected, pretended that the testimony was taken by his counsel without his knowledge, but still the said Moses was willing to use it, and when, at one time, it was excluded on the ground that the interrogatories were defectively executed, the said Moses pretended to take them back for reexecution, and being, of course, unable to find either the witness or the commissioners, actually folded up the old answers in a new envelope and had them returned as newly taken; and that for this and other...