Bank of Tifton v. Bryan

22 S.E.2d 467 | Ga. | 1942

1. An administrator who is an heir at law of his intestate, and as such has an interest in the property sold, may purchase at the administrator's sale of the property of the estate; provided he is guilty of no fraud, and the property is exposed for sale in the ordinary mode and under circumstances to command the best price.

2. The superior court of Tift County, in which a garnishment with traverse thereto is already pending between the plaintiff bank and the defendant administratrix, the issue being whether the administratrix has in her hands funds to be distributed to certain persons who are indebted to the plaintiff in the garnishment proceeding, is empowered to pass upon and determine any relevant issue arising therein, including the validity of the award and the judgment entered thereon attacked in the instant suit. That court, having both legal and equitable jurisdiction, may administer both remedies in the same case, and, when proper, may allow an equitable amendment in aid of the garnishment.

No. 14290. OCTOBER 14, 1942. The Bank of Tifton filed its petition against Mrs. Lena B. Bryan, individually and as administratrix of the estate of Miss Ava Baker, deceased, and against the husband of Mrs. Bryan. The petition and an amendment alleged as follows: Mrs. Bryan as administratrix came into possession of described real and personal property left by her intestate. The heirs at law of the deceased were Mrs. Bryan, her father, and her brothers, L. E. and W. E. Baker. The two last named are indebted to petitioner on a promissory note given for a loan of money. They being non-residents of this State, petitioner had issued an attachment and garnishment against the administratrix, returnable to the September term, 1941, of Tift court, requiring her to answer what money, property, or effects she had belonging to either of said non-resident heirs of the deceased. She obtained permission to delay answer until the December term, 1941, and then answered non-possession of any money, property, or indebtedness to either of the named non-resident heirs at law; to which answer petitioner filed its traverse, which is undisposed of and is now pending for trial in the court to which the present petition is filed. In the meantime said administratrix filed in the court of ordinary of said county her petition in which she showed that there were pending claims against the estate as well as against certain distributive heirs of said deceased, and particularly recited that one of these claims was that of her husband, W. W. Bryan, for board and lodging and hospital expense paid by him for the said deceased, and she prayed that said last-named claimant submit his claim to arbitration. The court of ordinary approved such petition, and appointed as one of the arbitrators one Christian, and directed the claimant Bryan to appoint an arbitrator, and said two arbitrators approved Bryan's claim for $1440, which was also approved by the court of ordinary, and judgment was entered accordingly. The plaintiff alleges that the administratrix purchased as an individual the described realty of the estate at a public sale thereof, and is in possession of same by virtue of a deed; that her return shows that the assets of said estate are $2527.56, but the debts of the estate, including expenses of administration, are in excess of that amount; that the arbitrators proceeded under the law for arbitration, whereas the administratrix expressly petitioned the court of ordinary that it be under the Code, § 7-103 et seq., which is the common-law arbitration; that, the award having been made the judgment of the court, said sum was paid to Bryan by the administratrix; that the petition of the administratrix for arbitration did not show that there was any controversy or disagreement of the rights of the claimant, or liability as administratrix; that the entire procedure was based on the assumption that such claim was just, but it is here contended that the arbitration was only for the purpose of precluding the plaintiff as garnishing creditor, from asserting its right to contest such claim; that it did not have any notice or knowledge of the arbitration until more than two months after the award was granted, and not until the annual return of the administratrix; that there are no other debts against the estate; that the administratrix has petitioned the court of ordinary to be discharged; that petitioner is willing to do equity to the administratrix and to the defendant Bryan, by paying to Mrs. Bryan, who has purchased at administratrix's sale, the entire amount paid by her, and the taxes for the year 1941, the payment to be made on condition that she execute to the plaintiff a deed to the premises, with special warranty only as to liens that may have arisen against the place since she has become possessed of it; and that in the absence of acceptance and fulfillment of the condition stated, the petitioner prays: that the sale of said property by the administratrix be set aside and declared void; that the deed executed to Mrs. Bryan be declared void and canceled; that the property be again offered for sale by the administratrix; and that the arbitration and the award be declared void and unauthorized.

The defendants demurred on the grounds, that the petition sets forth no cause of action against the defendants; and that the petitioner is estopped from attacking the sale which took place on the first Tuesday in July, 1941, when the proceeds of that sale constituted the great bulk of the estate. The defendants demurred generally to the allegations relating to the claim of W. W. Bryan and the arbitration and the award and the judgment sustaining the award, since it is not alleged that such arbitration and award were not conducted as prescribed in the statutes of this State, especially as the petition shows that the award was made the judgment of the court of ordinary and was entered on the minutes of the superior court, in conformity with the statutes of Georgia, and is thereby binding. The general demurrer was sustained, and the plaintiff excepted. 1. Aside from the one for process, the prayers are that the sale and the deed executed by the administratrix to herself be declared void; that the property be again offered for sale; and that the arbitration proceedings, including the award and judgment based thereon, be declared void. There is no allegation that the land brought less than its value, or that the property was not exposed for sale in the ordinary mode and under circumstances to command the best price; nor are any facts set forth to show that the administratrix was guilty of any fraud in relation to the sale. Without any averment of that kind, it is no ground to have the sale set aside, and the deed thereunder canceled, that the administratrix was the purchaser, when it appears that she was an heir at law. Arnold v. Arnold, 154 Ga. 195 (113 S.E. 798); Thompson v. Thompson, 157 Ga. 377 (121 S.E. 225);Robinson v. Smith, 159 Ga. 269 (5) (125 S.E. 593);Henderson v. Lott, 163 Ga. 326, 332 (136 S.E. 403); Head v. Scruggs, 178 Ga. 324 (173 S.E. 113).

2. The basis of plaintiff's contention is that it is a creditor of two non-resident and insolvent distributees of the estate of Miss Baker; that the annual return of the administratrix shows that the debts of the estate, together with the expenses of administration, exceed the assets; that the husband of the administratrix presented a claim of fourteen hundred and forty dollars against the estate, and that on the administratrix's petition to the court of ordinary, to have said claim submitted to arbitration, the ordinary consented to an arbitration, and an award allowing the claim was returned and was made the judgment of the court of ordinary and entered on the minutes of the superior court; and that, for various reasons urged, the submission, award, and judgment were void. It is assumed that this contention carries the insistence that, had not said claim been allowed, there would have been funds available for distribution to the heirs, so that plaintiff would benefit by its garnishment against the administratrix, which with the traverse of the answer is pending in Tift superior court. The petition does not allege that the claim is unjust, but merely that it should not have been submitted to arbitration. It is unnecessary to examine the soundness of the position that the arbitration proceedings were void. On the trial of the issue pending in the other case between the bank and the administratrix, on her answer to the garnishment and the traverse, the issue as to the validity of this claim can be made and determined without resort to a separate suit, such as the one now before us. If the plaintiff is in position to attack the proceedings, and an amendment to its pleadings be needed, it is entitled to raise that issue on the trial of the other case.

Under the practice and procedure prevailing in this State, any party in a law case pending in the superior court may by amendment avail himself of equitable remedies in aid of his cause. With proper parties and pleadings before it, the court will administer the appropriate relief, whether legal or equitable. This obviates the necessity of filing a separate suit in equity in aid of the common-law action. Smith v. Dysard Construction Co., 15 Ga. App. 192 (82 S.E. 761); McDonald v. Redding Lumber Co.,43 Ga. App. 656 (7) (159 S.E. 888); Hamilton v. First NationalBank of Rome, 180 Ga. 820 (180 S.E. 840). In Kimbrough v.Orr Shoe Co., 98 Ga. 537 (25 S.E. 576), relief was sought by filing in the pending garnishment case what was called an equitable traverse. In Gunn v. Gunn, 103 Ga. 607 (30 S.E. 541), there was not, as here, a demurrer to the petition, and the question whether the creditor should have sought relief in the pending case was not before the court, the only objection to the grant of the order complained of in that case being that "there was no pleading then in court to authorize the same."

In a case like this, the garnishee has the right to insist that this litigation not follow a circuitous route, when a direct one, safe and easy to travel, and one which will serve the plaintiff just as well, is open to him. As between the two, the courts will allow no choice, but will force the suitor to take the latter. Since the matter dealt with in the first division of this opinion showed no right in the plaintiff to have the sale by the administratrix and the deed made pursuant thereto declared void, and since it appears that in an issue now pending in the same court, between the plaintiff bank and the administratrix, the plaintiff can obtain an adjudication of its contentions as to the invalidity of the award and the judgment thereon, the court did not err in sustaining the demurrer and dismissing the action.

Judgment affirmed. All the Justices concur, except Hewlett,J., not participating.