Bank of Statesboro v. Waters

165 Ga. 848 | Ga. | 1928

Lead Opinion

Beck, P. J.

(After stating the foregoing facts.) We are of the opinion that the court should have granted the prayers of the petition for injunction and the appointment of a receiver. It is true that under the item of the will of the mother of the defendant in fi. fa., from which will the latter derived his title to the interest in the property in question, he had no such interest in the property devised to the executor as could be seized or levied on under the execution issued upon the judgments in favor of the plaintiffs in this case. Under the terms of the item of the will quoted, the title to the property vested in the executor, to be disposed of in conformity to the will. Harris v. Kittle, 119 Ga. 29 (45 S. E. 729). By the terms of the will a vested remainder was created in the specified part of the proceeds of the sale of the land in favor of the testatrix’s son, the defendant in fi. fa. Under the ruling in the Kittle case, this could not be seized or levied on at law for the son’s debts. But the son’s interest in the estate devised was assets belonging, to him; and as the assets were of such a nature that they could not be levied upon or seized at law, relatively to judgment creditors whose rights to have assets of their debtor-applied to the satisfaction of judgments in their favor, these assets in the present ease became equitable assets; and in section 3217 of our Code it is provided that “Courts of equity should assist. creditors in reaching equitable assets in every case where to refuse interference would jeopard the collection of their debts.” To refuse equitable interference under the circumstances of this case would “jeopard the collection” of the debts in question.’ In the case of Sayre v. Flournoy, 3 Ga. 541, it was said: “A court of equity will aid a judgment creditor who has pursued his legal remedies to every available extent, to reach a distributive share of an estate to' which an insolvent debtor is entitled in his own right, iu the hands of an administrator, held in trust for such judgment debtor.” And in the course of the opinion in that case it was further said: “The fact that the judgment creditor has exhausted all his legal remedies, without obtaining satisfaction of his judgment, gives him a right to come into a court of equity and ask its assistance, to reach the fund in the hands of the administrator, held in trust for the judgment debtor; and the insolvency of the judgment debtor, in our judgment, greatly strengthens the complainants’ equity; for if the administrator should pay over to the debtor the fund held in trust for him, it might be squandered, misapplied, and placed entirely beyond, the reach of the creditor.”

Whether the order and judgment of the ordinary setting apart the debtor’s interest in the tract of land to him as a homestead would be held invalid if it were subsequently attacked and objected to, in proceedings instituted by a party having such an interest in the property as would authorize him to make the attack upon the homestead, we do not think that the defendant in this case can attack it on the ground that it is invalid; he is estopped to do so; for the setting aside of the homestead was upon his application, and it was afterwards affirmed and allowed by the referee in bankruptcy, and the property constituting the homestead was released from the custody and jurisdiction of the bankruptcy court. If the plaintiffs’ prayer for. injunction and the appointment of a receiver in this case be not granted, the assets in question will be endangered, and endangered to such an extent that unless the plaintiffs in fi. fa. keep an outlook for the happening of the event that terminates the estate of the life-tenant, upon the happening of that event the executor will sell the land in question and distribute the proceeds thereof, paying to the defendant in these fi. fas. his proportion of the proceeds, and the debt of the judgment creditors will be lost. Of course, if they were so extremely diligent as to watch for the death of the life-tenant and immediately after his death should garnishee the executor, they might in his hands catch and hold the share of the defendant in fi. fa. in the proceeds arising from the sale of thes land. But a court of equity will not require this extraordinary diligence on the part of creditors having an unquestionable right to have the debtor’s assets applied to their debt; for by the grant of the injunctive relief sought and the appointment of a receiver the collection of the debts involved here, to the extent of the value of the debtor’s interest in the estate, may be preserved and enforced. The decree might be so framed as to authorize the receiver to sell the interest in the estate belonging to the defendant in fi. fa. under terms prescribed by the court; for it is a vested interest and has a present value.

For the reasons stated we think the court should not have denied the prayers of the plaintiffs and dismissed the case.

Judgment rev&rsed.

All the Justices concur.

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Concurrence Opinion

Bussell, C. J., and Atkinson, J.,

concur in the judgment of reversal, but they are of the opinion that the trial judge properly refused tbe appointment of a receiver, and should have granted an injunction restraining the defendant from encumbering or disposing of his interest in the estate.