71 Ga. 784 | Ga. | 1883
The question made in this record is, whether the wife of a decedent, having sued the defendant—the plaintiff in error here—on a promissory note to her individually, the defendant can set off a claim for medical services due him by the husband, where the wife has sold all the personalty of the husband, and has thus become his executor de so?i tort, and is the sole heir of the husband, and has no property of her own which can be reached %
“And now comes the defendant, and for further plea says plaintiff ought not to recover, because he says that plaintiff is indebted to him in the sum of $123.00, in this, to-wit: that one J. W. Andrews died intestate on-day of-, indebted to defendant in the sum of $123.00 on account, as will fully appear from the annexed account. That there was no legal representation on his estate, and that the plaintiff, without authority of law, wrongfully converted to her own use the personalty of said J. TV. Andrews, amounting in value to the sum of $1,000, whereby she became executor in her own wrong, and as such liable to this, defendant in said sum, which said sum exceeds the amount of plaintiff’s claim by the sum of $-, which claim defendant pleads as a set-off, and prays judgment for said excess against plaintiff; that said Mary Andrews is insolvent, and owns no property in her own right, or other property except what she obtained from and belongs to the estate - of said John TV. Andrews, deceased; that she has converted the estate of the said John TV. into money, and has no visible property which can be reached by legal process, and would be unable to respond to defendant, if he should obtain judgment against her as executor de son tort, and this defendant will be remediless unless allowed to set-off his said account against the plaintiff's said claim.”
To this plea the medical account is exhibited, and was proved to be correct.
The testimony is as follows, on the equitable plea: Defendant testified that the plaintiff, Mrs. Mary Andrews, is insolvent. She has no visible property, except a half interest in a- small house in Knoxville, which belonged to her husband, and which she has taken possession of as his wife—not worth over fifty dollars.
H. D. McCrary testified: “ I think Mrs. Mary Andrews is insolvent. She took possession of the property of John W. Andrews, her husband, after big .death. She sold me the interest of John W. Andrews in the store for one thou-' sand dollars. She converted all Andrews’s estate into money, except a half interest in a house and lot in Knoxville. The house and lot, 1 suppose, is worth two hundred dollars. She has never re-invested the money, that I know
The above is the entire testimony on the issue made by •the plea. It was not stricken, but the evidence was admitted and heard in support of it. The court rendered j udgment that the evidence did not support it. We are of the opinion that it did support it fully. It is true that one witness thought the plaintiff solvent; but the facts on which he bases that opinion show that she has not sufficient visible property to pay the claim set-off. The half interest in the house, in his opinion, is worth but $100. She has no ostensible property but that, and that, too, was her husband’s. She has put all the personal estate into money; it cannot be reached. To all intents and purposes of being able to respond to a judgment and execution for the amount of this claim of defendant, she is insolvent. The process of the court cannot reach her money in her pocket; and such being the case, a judgment against her will do defendant no practical good, and he is remediless, unless his claim of set-off be allowed.
No party can be forced to go into a court of equity, where he can set up an equitable plea at law in this state. Had the defendant filed a bill in equity, alleging these facts? the chancellor would have sustained it, and granted relief. Why may not a common law court do the same thing? Code, §3082. In set-off, equity generally follows the law; but if it be of an equitable nature, the courts of equity take jurisdiction to enforce the set-off. Code, §3141. In cases of insolvency, there are peculiar equities which will be seized upon and enforced. 31 Ga., 26, 33 ; 41 Ib., 260, 262 ; 42 Ib., 161.
It seems to us, where a man dies indebted for medical services, and his wife converts Ids entire personal estate into money, and leaves the county with it in her pocket, and has nothing visible except a half interest in a house,
So that we think the judgment against the law and the evidence, and it must be set aside, and a new trial awarded. See Code, §2441; 19 Oct., 290; 30 Ib., 557; 36 Ib., 597; 2 Ib., 304; 24 Ib., 209 ; 38 Ib., 264.
Judgment reversed.
