176 Ga. 293 | Ga. | 1933
Gordon Castleberry for himself, and J. W. Simmons, successor to T. C. Miller, clerk of the superior court of Fulton County, for the use of Gordon Castleberry, filed a petition against T. J. Long Jr., Walter B. Stewart, and United States Fidelity and Guaranty Company, alleging in substance as -fol-, lows: T. J. Long Jr. and Walter B. Stewart were appointed receivers for the property and assets of the Southern Realty & Trust
The court did not err in sustaining the demurrer. Long and Stewart were appointed receivers on September 7, 1927. Castle-berry knew that they had been appointed receivers, knew they were handling the property in question, the property formerly belonging to Southern Eealty & Trust Corporation, with whom he had previously contracted to purchase the lot of land in question, and knew of the proceedings brought by George Eipley Jr. against the Southern Eealty & Trust Corporation, which resulted in the appointment of the receivers. While he alleges that he did not know that the final report had been filed, it is to be presumed that he knew that at some time the receivers would file their final report and ask to be discharged. It does not appear what disposition was made of the funds received by the receivers from the plaintiff. The funds may have gone to the discharge of the first mortgage on the real estate, or may have been consumed as a part of the expenses of administration, or may have been used for some other purpose; and it is to be presumed that the funds received by the receivers in the administration of the affairs of the Eealty & Trust Corporation were paid out by order and authorization of the court having jurisdiction over the receivers; for a receiver can not pay out money in his possession without an order of court. But at any rate, knowing that the affairs of the Eealty & Trust Corporation were in the hands of the receivers named, for the purpose of disposing of the same according to law and the orders of the court passed in the receivership case, Castleberry should have intervened and placed before the court for adjudication any equitable claims that he may have had, by virtue of the payments made upon the purchase-price of the lot in question, to a deed from the receivers conveying the title to the lot to himself. The property of the Southern Eealty & Trust Corporation was under a mortgage when plaintiff made the contract for the purchase of the lot. If the plaintiff had rights superior to that lien, or if he had rights superior to other creditors of the corporation, he could have intervened in the case and asserted those rights. No promises made by Stewart could give to
Judgment affirmed.