Elmore v. Spear

27 Ga. 193 | Ga. | 1859

By the Court.

McDonald J.

delivering the opinion.

This is not technically a creditor’s bill. The assets which the creditor proposes to reach are not equitable, but legal assets. The only circumstance which authorizes the complainant to go into chancery, is his inability to identify the property or make the necessary proof to sustain a remedy at law, which otherwise, would be adequate, without a discovery from the defendant, which he avers to be necessary. A single creditor may file a bill to reach legal assets, and if he gains thereby a priority over other creditors, he will be entitled to retain it. 2nd Danl. Ch. Prac. 204 &c; Story’s Equ. Jur. Sec. 546, &c.

The defendant in such cases has no interest in the question so far as the rights of the creditors among themselves are concerned. If the complainant succeeds in holding the defendant to’ account, the costs must be paid from the fund, and expenses also, except those incurred by the defendant in sustaining his purchase, or his right to retain the amount actually paid by him. The creditors are not moving here to be made parties; not even Bostick whose evidence was taken in this case, and who must of course, know of the entire proceeding. The complainant may control his own case, McDougald vs. Dougherty, 11 Ga., 538. And when a single creditor is in pursuit of legal assets, he cannot be forced to divide with other creditors. It is otherwise with equitable assets. In this case the bill alleges that the defendant holds the property in trust for complainant and other creditors, but it discloses also, that the trust arises from the alleged fraud of the defendant and is implied in law and not that there was any trust created by contract for the payment of creditors.

Judgment reversed.