131 Ga. 554 | Ga. | 1908
Inasmuch as a judgment in Georgia binds all the property of the defendant from its date, and the plaintiff in the execution may levy on any of such property which is subject to the lien of his judgment, at his option (with the right in the defendant to point out property), if the defendant in an execution duly entered on the docket conveys any or all of his property to others, equity will not delay the plaintiff in execution in the enforcement of his legal right to levy on some portions of the property in order that the purchasers of different parts thereof may adjust among themselves their equities, and will not compel him to levy upon the property in the inverse order of its sale to such purchasers. Barden v. Grady, 37 Ga. 660. Where a plaintiff in execution has caused it to be levied on several pieces of property, and is proceeding to have it enforced in the ordinary legal method, and claims have been interposed by those holding the respective parcels, whether one of them can assert that it is necessary for the plaintiff to go into equity in order to enforce his execution, and allege his equities for him, and thus compel him to assert his equitable rights instead of proceeding to try the legal issue of subject or not subject, over his objection, is not now before us. In this case the plaintiff in fi. fa. has not demurred to the petition or raised any objection thereto. It is not therefore a question as to whether he might be delayed in his common-law method of procedure in order to adjust the equities between the purchasers of land; but it is a question as to whether, between the purchasers themselves, two of whom alone raise objection by demurrer, an equitable cause of action is set out. Section 3422 of the Civil Code declares, that “if the estate has been distributed to the heirs-at-law without notice of an existing debt, the creditor may compel them to contribute pro rata to the payment of his debt.” See also section 3336. If the heirs or legatees took with notice, they would certainly be in no better position. When assets of a trust character are misapplied and can be traced in the hands of persons affected with notice of the misapplication, the trust attaches still to them, and equity will aid in re-'
The fact that the petitioner and others had interposed claims, under the statute, to the levies of the execution furnishes no reason why, if the common-law procedure does not give a complete remedy,'resort may not be had to equitable pleading for that purpose. Equitable pleadings in a claim case "or equitable proceedings in aid of a levy or a claim are quite usual in proper cases. While the petitioner does not allege in terms that it concedes liability in equity, the facts, set out in its petition, taken as true, would suffice to make a case of common burden for equitable apportionment. This is not strictly a case of legal contribution in which the rule laid down in the code is applicable, that, among two or more persons, “where all are equally bound to bear the common burden, and one has paid more than his share, he is entitled to contribution from the others.” Civil Code, §3991. It is rather a case of equitable apportionment of a common burden upon different lots or owners thereof, and of requiring them in equity to contribute ratably, when such apportionment is made, to the satisfaction of the charge which is proceeding to subject the property. In Huey v. Stewart, 69 Ga. 769, there was no question of determining the burden which should fall upon respective lots or lot owners, and which was uncertain in amount until the value of the respective lots should be ascertained, nor any matter of multiplicity of suits. A recovery had been had against one administrator, who thereupon sought to obtain contribution from the representative of his coadministrator without paying the judgment. In that or similar cases payment would undoubtedly be necessary before seeking contribution. In Jenkins v. Nolan, 79 Ga. 295 (5 S. E. 34), an effort was'made to file a bill of peace before a single claim had been tried, without showing any sufficient reason why the legal question could not be adjudicated in the claim case. In Mayor v. Dean, 124 Ga. 750 (53 S. E. 183), the mere fact that three executions based on assessments for local municipal improvements had been issued, and two of them levied on separate lots of the same person, was not alone sufficient to authorize an equitable proceeding to consolidate them on the ground of multiplicity of suits. In the case of Home Ins. Co. v. Virginia-Carolina Chem. Co., 109 Fed. 681, the circuit court for the district of South Carolina went fur
Whether or not the plaintiff in execution could have successfully contested the right of the petitioner to have enjoined him from proceeding, and to have brought the entire matter into equitable cognizance, is not before us and is not decided. But upon- the case presented the presiding judge did not err in overruling the demurrers which were interposed by claimants of other lots than that held by petitioner. The two demurrants filed separate bills of exceptions, but both are controlled by the samé ruling, and the judgment in each is the same.
Judgments affirmed.