Mason v. Atlanta Fire Co. No. 1

• Decision Date: 28 February 1883
• Citation: 70 Ga. 604
• Parties: Mason et al. vs. Atlanta Fire Company Number 1.
• Court: Georgia Supreme Court

70 Ga. 604

Mason et al. vs. Atlanta Fire Company Number 1.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

[This case was brought forward from the last term, under §4271 (a) of the Code.]

Actions. Administrators and Executors. Title. Corporations. Before Judge Hillyer. Fulton County. At Chambers. October 6, 1882.

Mrs. Mason filed her bill on behalf of herself and her minor children against the Atlanta Fire Company No. 1, alleging, in brief, as follows: In 1850 the company was incorporated by the legislature, under the name of the Fire Company of the City of Atlanta. They were to elect their own officers, who were to be commissioned by the governor. The members, not exceeding thirty in number, were to be exempt from jury duty, and, except in case ofwar, from militia duty. The length of time for the continuance of the corporate privilege was not prescribed. By act of 1854, the membership was increased to sixty, and the name changed to the Atlanta Fire Company No. 1, perpetual succession was given, with the right to have a seal, to sue and be sued, to form a constitution and adopt by-laws. They subsequently adopted a constitution and by-laws, which provided for the election of members, their duties, their expulsion, the dropping of them from the roll for delinquencies, the election of officers, etc. No provision was made, either in the charter or in the constitution and by-laws, for the acquisition of property; but from the collection of dues from the members and by voluntary donations, fairs, festivals, excursions and other public and private entertainments, a considerable amount of money was raised and invested in real and personal property for the use of the company. Mason, the husband of complainant, was a member of this company, and by his zeal, skill and energy, contributed more to the creation of this fund than any other one member. He died October 21, 1867, being at that time an active member in good standing, with all his dues paid and a clear record on the company\'s book. In 1882, the system of fire service in Atlanta was changed, the volunteer service being discontinued and a paid department being organized. This company, therefore, was dissolved, or at least the object of its incorporation ceased. They have sold their personal property for an amount not known to complainant, and their real estate for $10,300, and the present living members of the company are about to distribute the money without regard to the rights of the widows and orphans of deceased members. If the fund is so distributed, it will, in a large measure, go into the hands of persons who are insolvent and cannot respond to any judgment complainant may recover. The prayer was for an accounting between living members and the representatives of deceased members, for the appointment of a receiver to take chargeof the fund, and injunction to prevent its being paid out until the rights of complainant could be ascertained.

Defendant demurred to the bill, (1) because complainant disclosed no right in herself to assert the supposed cause of action, and (2) because there was no equity in the bill.

Defendant also filed an answer, the statements of which differed from those in the bill in the following particulars Defendant acquired from the voluntary sources stated in the bill such property as was necessary to it for fire purposes. The city of Atlanta has abolished the volunteer fire system. It is not true that defendant has dissolved or surrendered its charter and franchises. The property being no longer needed, was sold, the proceeds of the sale of the personalty (which was acquired since 1867) have been divided among the members. No action has been taken with reference to a division of the money arising from the real estate. Defendant insists that at his death Mason ceased to be a member, and denies that either he or his estate had any interest which survived him.

The injunction and receiver were denied, but a temporary injunction was granted to restrain the paying out of $300 until the case could be heard in the Supreme Court. Plaintiff excepted.

George T. Fry; Reed & White, for plaintiff in error, cited, on the statute of limitations, Code, §§2928, 3196; 36 Ga., 575; 1 Ga., 379, 538; 6 Ib., 310; 22 Ib., 108. On the nature of the corporation and interest of members, Field Corps., §§69, 123; Mor. Corps., §§381, 662, 401, 403, 405, 343, 217; Code, §§1688; 62 Ga., 695.

Hopkins & Glenn, for defendant, cited, on the statute of limitations, Code, §§2918, 2928. Administrator should 6ue, Code, §2483. On division of assets, Code, §1688; Ang. & Ames Corp., §195; 38 Cal., 174; 5 Ga., 243; 53 Ib., 628.

Hall, Justice.

1. The first question to be considered is whether there are any parties to this bill. Complainant sets up a claim, in behalf of herself and children, to the deceased husband's right to participate in a fund arising from the sale of property belonging to a fire company, of which he in his lifetime had for many years been an active and prominent member. When this proceeding was commenced, he had been dead for more than fifteen years, and during ail that time there had been no representation upon his estate.

This is a suit concerning personal property, and by the Code, §2483 upon the death of the owner, the title to real property vests immediately in his heirs at law, but the title to all other property vests in the administrator of his estate for the benefit of heirs and creditors, and it has been repeatedly decided that legatees, creditors and distributees can recover personal property only through an executor or administrator. 12 Ga., 278. Upon the appointment of an administrator, the right to the possession of the whole estate is in him, and so long as such administration continues, the right to recover possession of the estate from third persons is solely in him. If there be no administration, or if the administrator appointed consents thereto, the heirs at law may take possession of the lands, or may sue therefor in their own right. Code, §2485. Where the administrator declines to sue, he may assign the claim to a creditor or distributee, who may, at his own expense, prosecute the suit; but if he recovers, the proceeds, after paying expenses of suit, are to be distributed by the administrator. Code, §2536. Without some special reason, a suit in equity cannot be maintained by a creditor, distributee or legatee, for the recovery of property from a third person. 61 Ga., 602, 607; 8 Ib., 356; 25 Ga., 252. No such ground for equitable interposition, as the above cases hold necessary, is alleged or shown in this case.

The emergency set out and relied upon here, viz: thepressing danger of immediately distributing these funds and placing them in the hands of insolvent and irresponsible persons could not dispense with indispensable parties. This emergency could have been met by letters of administration ad colligendum, (Code, §2487), and such administrator could obtain an injunction when necessary (24 Ga., 131), and also institute a suit for collecting the effects of deceased, to which a permanent administrator, when appointed, might become a party. 50 Ga., 264.

The...