Jordan v. Brown

• Decision Date: 04 March 1884
• Citation: 72 Ga. 495
• Parties: JORDAN v. BROWN et al.
• Court: Georgia Supreme Court

72 Ga. 495

JORDAN v. BROWN et al.

Supreme Court of Georgia.

March 4, 1884

February Term, 1884.

1. While generally all administrator may, in his discretion relieve a debt, not barred in the lifetime of his intestate from the operation of the statute of limitations, by a new promise to pay, yet, where he has filed a bill to marshal assets, and has brought the creditors with their claims before the court, he could not arbitrarily relieve certain claims of the bar of the statute, and plead it as to others. Either he will be compelled to abstain from all interference in the matter, or, if allowed to interfere, it will be upon the condition that he applies the same rule to all who have equally meritorious claims.

2. Usually the limitations applicable to a court of law also apply to a court of equity, but the latter court may also interpose an equitable bar in accordance with its established rules, whenever, from lapse of time or laches of the complainant, it would be inequitable to allow a party to enforce his legal rights, and may interpose to prevent the bar from attaching, when, under like circumstances, it would be inequitable to permit a defendant to shield himself by pleading it.

( a. ) Corn having been furnished to an estate to sustain the live stock and persons working the land, and a note having been given by the administrator, signing as such this was sufficient to indicate that the debt was that of the estate.

( b. ) There was sufficient in this case to entitle the plaintiff in error to submit his claim to a jury.

3. Without the consent of the different claimants, a bill to marshal assets and distribute an estate could not be finally tried and the rights of the various claimants determined until it should first be ascertained what fund there was for distribution.

Administrators and Executors. Equity. Statute of Limitations. Debtor and Creditor. Before Judge BOWER. Dougherty Superior Court. October Term, 1883.

Reported in the decision.

W. E. SMITH, for plaintiff in error.

D. A. VASON; R. HOBBS; D. H. POPE; HAMILTON MCWHORTER; G. J. WRIGHT, for defendants

HALL Justice.

This proceeding, in some of its aspects quite novel and somewhat anomalous, presents for determination various questions. The primary object of the bill was to arrest the levy of an execution upon the estate of George O. Dawson, deceased, and to prevent the sacrifice of such estate by a sale under said levy, on account of its being involved in litigation, commenced in Dawson's life, and which, if it terminated unfavorable to him, might absorb the greater portion, if not the whole, of his estate. An injunction was prayed and ordered, not only against the levying creditor, but against all others who, so far as known, were made parties to the bill. The bill was filed in 1878, and the injunction ordered as prayed. It is charged that complainant will be unable to determine, until the litigation is disposed of, which involves the title to the larger portion of the estate in his hands to be administered, what title or interest, if any, the estate has in and to the property in litigation, and what defences he should make to the suits instituted, or which may be instituted by creditors, in order to protect himself as such administrator and do justice as to the creditors, etc. He prays that the creditors may appear before the court and present and establish their several claims, that the amounts due to each of them, together with their dignities and respective priorities, may be ascertained and decreed, and that each of them may be restrained from instituting or prosecuting suits at law against complainant; that, after the litigation involving the property in hand to be administered is terminated, the court may decree the sale of the interest thereby ascertained to belong to the estate, and order the application of the proceeds of the sale among the persons entitled thereto. Notwithstanding the pendency of the suit involving the title to the estate, and the impossibility of decreeing the sale of the interest represented by complainant thherein on that account, the court, at its October term 1883, by the consent of plaintiff and defendant, tried the case and made a final decree therein, distributing the funds when they should come to hand, according to an arrangement agreed upon by the administrators and all the credtors before the court, except the plaintiff in error, who was no party to the arrangement.

Dawson the testator, died in 1865. Whether the executor named in his will ever qualified does not appear. We are entirely ignorant of the contents of the will, or when the same was proved, as it does not appear to have been before the court below, and there is no copy of it in the record. All we know of any representation of the estate is Seabrook's qualification as administrator with the will annexed, in June, 1866, and the complainant's qualification as administrator de bonis non with the will annexed. It is evident that every claim in this record, except Outy's and perhaps that of Jordan, the plaintiff in error, was barred by the statute when this bill was filed. The claims of each of these creditors were acknowledged and taken out of the statute, except as above stated, at or immediately before the hearing, by a written acknowledgment of the complainant and a promise to pay them, in which acknowledgment, however, the complainant took good care to stipulate that he should incur no personal responsibility thereby No plea of the statute was set up to the claim of the plaintiff in error until it was presented on the hearing, when that, with other pleas, were filed, over his objection. He asked that complainant be compelled to file a similar plea to the claims of...