77 Ga. 126 | Ga. | 1886
A bill was filed by J. B. Groover against the administratrix of his father’s and brother’s estate, and her sureties on the bond she gave, for account and settlement of his share. Besides certain portions of real estate or its proceeds, he was decreed a sum, in money, for which execution issued, and after entries of nulla Iona by the sheriff as to the estate she represented and her own individual property, this execution was levied upon Bowen’s property, who was one of the sureties on the bond. Bowen filed an affidavit of illegality to this proceeding, and the same having been dismissed by the court, who, by agreement passed on facts as well as law, Bowen excepted, and assigned as error this judgment of dismissal.
“Because, after the death 'of said Sarah H. Groover (the administratrix), and since the decree from which said fi. fa. issued was entered, the said James B. Groover, plaintiff in fi. fa., as aforesaid, without authority of law, wrongfully intermeddled with and converted to his own use two bedsteads, two feather beds, one chest and clothes, one spinning-wheel, two wash-pots and kitchen utensils, of the personal goods and chattels of the said Sarah H. Groover, of the value, as deponent believes, of one hundred and forty dollars, or other large sum of money, the estate of the said Sarah H. having no legal representative; that by reason of the said intermeddling with, and conversion of the personalty of the said Sarah H., as aforesaid, this deponent, and the other defendant securities, are entitled to, and should have, a credit on the said decree and fi. fa. of a sum of money equal to double the value of the property so possessed and converted, as aforesaid, or so much thereof as would be sufficient to extinguish the debt appearing to be due on the decree andfi.fa. aforesaid,”
Unquestionably there is equity in the allegations made in it, and if good in equity, a bill would lie.; and as the party need not go into equity, but may at law set up equity in his plea, we do not see why this ground, if it needs expansion or amendment, may not be so enlarged as to make a good equitable plea in bar of this proceeding under this execution, which he alleges is proceeding illegally, virtually because it has been paid off by the illegal seizure of the property of the principal debtor, whereby he incurred the penalty of an executor de son tort. It is true that the statute makes, the executor de son tort liable, to creditors and heirs of the estate he has intermeddled with and converted to his own use, or the legatees thereof; but the spirit and equity of the statute surely would extend it to the surety of the intestate or testator. Code, §2441. Certain it is that the law against sureties is strictly construed; for them it should have a liberal interpretation. Anyhow, if this plaintiff has converted this property and got the value of it, this surety does not owe that much of this execution, and he is entitled to have it applied to the payment, at least to the value of it, if not, as we incline to hold, to double the value as would be given to heirs or creditors or legatees. Indeed, the surety, when he pays this execution, is a creditor of this intestate — a very preferred creditor in equity, — and if so, why should he pay over to Groover on the fi. fa. what he could recover, not
We conclude that the ends of justice, the principles of equity and the spirit of our statute law, Code, §2441, demand that the issue made by the fifth ground of illegality should have gone to the jury on such facts as could be proved to support it, or that the judge, if he sat as a jury, as he did, should have heard evidence and’applied the law and equities above indicated to the facts that the evidence developed.
Judgment reversed.