No. 2260 | Ga. | Jul 15, 1921

Fish, C. J.

' (After stating the foregoing facts.)

1. The motion to dismiss is without merit, as Prentiss, a nonresident, appears to have been served as provided in the Civil Code (1910), § 6161. And it was decided in Rafter v. Talmadge, 147 Ga. 407 (94 S.E. 229" court="Ga." date_filed="1917-11-17" href="https://app.midpage.ai/document/flemister-grocery-co-v-burtz-5581939?utm_source=webapp" opinion_id="5581939">94 S. E. 229), that Eafter had no interest in the subject-matter of this litigation.

2. A vendor has no equitable lien for the purchase-money of lands in this State. Civil Code (1910), § 3373. Hall, under the terms of the contract he had with Green, at the time he conveyed to the latter his one-third interest in the land in question had no lien either at law or in equity on the land or the proceeds of the sale thereof by Green. Nor did he have any interest or claim to the land, equitable or otherwise, nor in the proceeds of its sale. He conveyed his entire interest in the property to Green, with warranty of title, except as to the Prentiss mortgage, in consideration that Green was to pay him one third of the proceeds of the sale of the land, provided the amount to be • paid should not exceed $5000. Hall held merely a written obligation against the estate of Green, as evidenced by the contract. The court erred in adjudging' that the receiver should pay to Hall the amount of his claim out of the fund in the hands of the receiver belonging to Green’s estate. Spence v. Solomons Co., 129 Ga. 31 (58 S.E. 463" court="Ga." date_filed="1907-08-08" href="https://app.midpage.ai/document/spence-v-solomons-co-5575929?utm_source=webapp" opinion_id="5575929">58 S. E. 463). See also Atlanta & Carolina Ry. Co. v. Carolina Portland Cement Co., 140 Ga. 650 (79 S.E. 555" court="Ga." date_filed="1913-10-02" href="https://app.midpage.ai/document/atlanta--carolina-railway-co-v-carolina-portland-cement-co-5579272?utm_source=webapp" opinion_id="5579272">79 S. E. 555); Gartrell v. McCravey, 144 Ga. 249 (86 S.E. 932" court="Ga." date_filed="1915-11-11" href="https://app.midpage.ai/document/gartrell-v-mccravey-5580603?utm_source=webapp" opinion_id="5580603">86 S. E. 932). The administratrix of that estate was entitled to such fund, and the fact that she was the court’s receiver did not deprive her of the right to have the fund awarded to her to be administered by her as administratrix. The matter stands exactly, in this respect, as if another had been the receiver, and she as administratrix were contending for the fund. Equity will not interfere with the regular administration of estates upon an application of any person interested therein or *732having a claim against it, except where there is danger of loss or other injury to his interests. Civil Code (1910), § 4596.

Judgment reversed.

All the Justices concur.
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