Greer v. Willis

Jackson, Chief Justice.

This bill was filed to subject certain property in the hands of a guardian of minors to pay debts of their father. Tt was brought against the administrator de bonis non of the father’s estate, who had refused to sue for the property, and the guardian of the wards, and the prayer is that the property be turned over to the administrator de bonis non, that he sell it and pay the debts The jury, in answer to certain questions propounded by the court, found substantially that the father’s, not the mother’s, money (the wards claiming under the mother) paid for the land which the bill sought to subject, that at the time the deed was made to the wife by Armstrong, from whom the purchase was made, the husband did not retain property enough to pay his just outstanding debts, and that he controlled the land bought as his own, and thereupon the chancellor decreed that the tract of land be turned over to the administrator de bonis non, that he sell it to pay the debts of these creditors, which are judgment debts, according to their priorities, and distribute the balance of the fund, if any, according to law, as the estate of the father.

To this decree no exception is taken, except in the motion for a new trial and as a reason therefor, and which, under the ruling of this court, re-affirmed more than once, amounts to no exception at all, because if the verdict be right there is no need to try again before the jury, though the decree may be bad. If, however, in this case it were excepted to, we think the facts admitted in the pleadings and those found by the jury ample to authorize this decree.

Should a new trial before the jury have been granted ?

1. The first ground is that the questions were not such as should have been submitted.- It seems to us that they brought out the great facts on which the equities of the parties must have turned. If the defendants wished other questions answered, they should have named them to the court, and doubtless, if proper, they would have been propounded also. 59 Ga., 485 ; 58 Ib., 140 ; Sup. to Code, 40.

2. The second ground is that the answers to the second and third questions are not supported by the evidence, but contrary to the weight of it. Those answers are that when the deed was made to his wife, the husband did not retain enough property to pay his debts, and that he dealt with the land as his own property. The jury passed upon the testimony, the presiding judge approved it, and we cannot say that there is not plenty of evidence to support the finding. Certainly there was no abuse of discretion. #

3. The third ground is that the verdict is contrary to law; but it is not specified in what particulars or on what grounds it is so; and we are unable to see why or wherein.

The absolute deed was made directly to the wife before the act of 1866, and vested the title in the husband. The proof is overwhelming that his money paid for the land, and that he controlled it. The wife, as his administratrix, turned over a part of the land to pay a trust debt of the husband under an award of arbitrators ; and taking all the fácts, there can be no doubt that the property belonged to the husband, and is liable to pay his debts.

4. The fourth and fifth grounds are in respect to the decree, and cannot affect a motion to try again before the jury, as already mentioned.

5. The sixth is that the judgments quando acciderint settled the question of no assets against these parties, and they cannot re-open that judgment. But how did it settle it, and what is that judgment quando ? It is simply that the administrator has not in hand any assets wherewith to pay the debt at the date of the judgment, and it is for his protection. If, afterwards he should recover assets, or, as in this case, the creditors, by bill, recover them for him, will that judgment estop them from getting their money? Clearly not.

The quando, the time when the assets acciderint, fall in, come to his hands, will have arrived, and the time when the judgment bears fruit, the reaping time, will have been reached. The administrator is still protected, but the land, recovered for him and despite his refusal to sue, must answer the judgments and become the assets to pay them. 7 Ga., 149; 59 Ib., 550.

This case is distinguishable .from that last cited in the 59th. Here the administrator never was in possession of the land, and could not pay debts with it or sell it for that purpose until recovered.

6. The seventh and eighth grounds are to the effect that Mrs. Josephine Fokes’ estate was not represented and was no party, and that the effect of the whole transaction will be to find against it without a hearing. The reply is that, if no party, it is not affected and the decree will not bind it, but substantially it was represented. These children are her heirs at law, and her administrator is their guardian.. These objections go, however, rather to the decree than to the verdict, and there is no exception properly made to the decree on this ground, for the reason that it is in the motion for a new jury trial, and made to obtain that; besides it should have been made a ground of demurrer for want of parties, and excepted to, if overruled at the time.

In view of all the facts, we think there is equity in the bill. The parties were without remedy at .law; they were entitled to be paid out of this land; they could get at it in no other way; and having a clear right, equity will furnish them a remedy. Code, §§3081, 4178 ; 61 Ga., 373.

Judgment affirmed.