Security Feed & Seed Co. of Thomasville v. Ne Smith

• Decision Date: 07 February 1958
• Docket Number: 19922,Nos. 19917,s. 19917
• Citation: 213 Ga. 783,102 S.E.2d 37
• Parties: SECURITY FEED & SEED COMPANY OF THOMASVILLE, Inc. v. Asa NE SMITH et al. Asa NE SMITH v. SECURITY FEED & SEED COMPANY OF THOMASVILLE, Inc., et al.
• Court: Georgia Supreme Court

Page 37

102 S.E.2d 37

213 Ga. 783

SECURITY FEED & SEED COMPANY OF THOMASVILLE, Inc. v. Asa NE SMITH et al.

Asa NE SMITH v. SECURITY FEED & SEED COMPANY OF THOMASVILLE, Inc., et al.

Nos. 19917, 19922.

Supreme Court of Georgia.

Feb. 7, 1958.

Altman & Johnson, Thomasville, for plaintiff in error.

C. E. Hay, A. J. Whitehurst, Thomasville, for defendant in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

1. Under the common law choses in action, except negotiable securities, were not assignable, and while the common law rule has been modified by statute in this State so as to permit the assignment of certain classes of choses in action (Code Ch. 85-18; Central Railroad & Banking Co. v. Brunswick & W. R. Co., 87 Ga. 386, 13 S.E. 520; Sullivan v. Curling, 149 Ga. 96, 99 S.E. 533, 5 A.L.R. 124), by Code, § 85-1805 it is provided that 'A right of action is assignable if it involves, directly or indirectly, a right of property; but a right of action * * * for injuries arising from fraud to the assignor may not be assigned.' Morehead v. Ayers, 136 Ga. 488, 71 S.E. 798; Couch v. Crane, 142 Ga. 22(8), 82 S.E. 459. In Marshall v. Means 12 Ga. 61, it is said: 'A bare right to file a bill [in equity] or maintain a suit is not assignable.' Thus, where, as here, the purchaser or assignee of accounts receivable brings an action to recover on an open account owing by the defendant debtor to the assignor and assigned to the plaintiff, and in the same action seeks equitable relief to set aside an alleged fraudulent deed to hinder, delay, and defraud his creditors, made by the debtor to his wife prior to the date on which the accounts receivable were assigned to the plaintiff, and also a subsequent loan deed made by the wife to counsel of the defendant to secure an indebtedness due by her to them, the trial judge did not err in sustaining the general demurrer of the defendants to so much of the petition as sought such equitable relief, and in dismissing the same as to all of the defendants except the debtor, as complained of in the main bill of exceptions.

2. By cross-bill of exceptions error is assigned by the defendant debtor upon the judgment overruling his general demurrer to the petition, seeking a recovery against him on the open account, upon the ground that, since the plaintiff joined in one action both its legal and equitable causes of action, the two must stand or fall together, and since the equitable petition was correctly dismissed on general demurrer, the legal claim against the defendant debtor alone should have gone out with the rest of the case....