168 Ga. 448 | Ga. | 1929
Tire court did not err in overruling the demurrers
to the petition. The same principles of law were involved and applied in Wylly v. Collins, 9 Ga. 223, and in a number of later cases. Although a judgment had been rendered against the trustee individually, the debt against the trust estate was not extinguished, and the rendition of the judgment against the trustee was no barrier to a subsequent proceeding to subject the trust estate to the payment of debts incurred for the benefit of the cestuis que trust. The act approved March 5, 1856 (Ga. L. 1855-6, p. 228), was to enable persons who had claims against trust estates to subject the corpus in a court of law. Salterwhite v. Beall, 28 Ga. 525. The act merely made-statutory a remedy which previously was in equity, as declared in Wylly v. Collins, supra. The principles were recognized and applied in Robert v. Tift, 60 Ga. 566, Kupferman v. McGehee, 63 Ga. 250, Moore v. Lampkin, 63 Ga. 748, Lyons v. Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155), and Sanders v. Houston Guano &c. Co., 107 Ga. 49 (32 S. E. 610). In Robert v.
The only insistence made in the brief of plaintiff in error is based upon the Civil Code (1910), § 4336: “A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered.” It is argued that the present proceeding, which seeks-to subject the trust property to the payment of the debt, could have been adjudicated in the original suit when a personal judgment was obtained against the trustee, and that therefore the question is res adjudicata. The fault of this contention is that the original proceeding did not make the cestuis que trust parties, nor did the creditor proceed against the rem. Therefore the present issue could not have been raised, unless it may be said that under the above code section the creditor was obliged to bring all parties to the suit or else be forever foreclosed from proceeding against them. Manifestly this position is not tenable. The code section does make all issues res adjudicata as between the creditor and the trustee personally, which were or might have been raised in that suit against the parties who were in court. But the original suit can not bind persons who were not parties to the suit, nor subject any property not proceeded against in rem, nor upon which a judgment against the trustee personally would not be in law a judgment lien.
Judgment affirmed.