Kilgo v. Vandyke
| Decision Date | 31 July 1871 |
| Citation | 44 Ga. 61 |
| Parties | SARAH E. KILGO et al., plaintiffs in error. v. M. H. VANDYKE, defendant in error |
| Court | Georgia Supreme Court |
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Lien. Homestead. Before Judge Knight. Lumpkin Superior Court. April Term, 1871.
In September, 1866, VanDyke agreed to deliver to Kilgo goods to be sold by Kilgo for him. Kilgo agreed to receive them into his store and sell them, and after paying VanDyke original costs they were to divide the goods on hand and accounts between them. At that time Kilgo owned the store and his dwelling adjoining it, and a farm. VanDyke furnished him $15,000 00 worth of goods. Kilgo sold part of them, and with part of the proceeds had his house repaired by painting, etc., and paid his physician's bill, etc. In February, 1870, Kilgo died, leaving his widow and several minor children, him surviving. Her books showed a balance due VanDyke of say $800 00, and Mrs. Kilgo agreed that this balance was due on said partnership account. She, as headof the family, refused to pay it, but has had the store, *dwelling and farm, all set apart as a homestead for herself and family. No administration has been taken on Kilgo\'s estate. Upon this statement of facts in his bill, VanDyke claimed a lien for said $800 00 on said homestead, and prayed that the homestead be subjected to its payment.
This bill was demurred to for want of equity. The demurrer was overruled and that is assigned as error.
H. P. Bell; R. N. Quillian, for plaintiff in error, relied on
John A. Wimpey; J. N. Dorsey, for defendant. VanUyke has lien: Story's Eq., J., sec. 1237, 1239. No provision in Code for enforcing this lien: See Code as to liens. Equity and law jurisdiction concurrent. Code, sec. 3041; 40 Ga. R., 442. The Court will protect the minors: Code, sees. 1772, 4133
This bill was filed by a copartner against the widow and minor children of a deceased copartner, to recover a balance due on account, and to subject property set apart for a homestead, to the claim. The Court overruled a demurrer filed to the bill, and we reverse the judgment overruling the demurrer, for the reason: 1st, That it was necessary to make the administrator a party, whose right of defense to the claim and settlement of the copartnership transactions between the complainant and his decedent, is a matter of legal duty devolved upon him by the law. 2d. We are of opinion, upon the facts stated by the bill and admitted by the demurrer, that compl...
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