75 Ga. 695 | Ga. | 1885
The defendants in error obtaine da judgment against Mrs. E. A. Cruger upon an account, and caused an execution issued on said judgment, tobe levied on certain property as the life estate of Mrs. Cruger. This was claimed by the trustee for Mrs. Cruger. The case came before this court at the August term, 1877, (59 Ga., 718), when this court held that the property was not subject to levy and sale; that the trust was executory, and that the interests of the life tenant, Mrs. Cruger, could only be subjected to the payment of her debts by equitable proceedings. The defendants in error then filed their bill in equity against Mrs. Cruger and her trustee, and upon this bill a decree was rendered, appointing the trustee a receiver to hold the property in which Mrs. Cruger had a life estate, and from the rents, issues and profits thereof, that the debt of Coleman & Newsom be paid. This decree is excepted to, and error is assigned thereon.
This court decided that Mrs. Cruger had a life estate in the property placed, in the hands of the receiver, but that the trust was executory, and that the trustee had the legal title, and the same was not subject to levy and sale. See the case cited above. But for the trust being executory, the property would have been liable to levy and sale. The income of the property is liable in equity to be applied to the debt of Mrs. Cruger; no one else is in any way concerned therein; it is hers, and while a court of law cannot reach it, a court of equity will appropriate it to the payment of her debts, and this is, in effect, the ruling of this court in Kupferman vs. McGehee, trustee, 63 Ga., 250. And this seems plain right and justice; that wherever the debtor alone is interested in property, and the property cannot be reached by process of the common law courts, that a court of equity will appropriate the income of the property to the payment of the debts of such debtor. In this case, Mrs. Cruger is dead
Judgment affirmed.
