111 Ga. 334 | Ga. | 1900
Annie D. Brockhan filed her equitable petition in Fulton superior court, against Fred and William Koch. She alleged, in substance, as follows: Petitioner is the sister of Willie Brockhan, who died in June, 1899, insane, intestate, and leaving petitioner as his sole heir at law. In November, 1890, petitioner was duly appointed Willie’s guardian, who was thereafter formally and duly adjudged to be insane. In 1896 petitioner made and executed to Fred and William Koch a note, both as an individual and as guardian of Willie Brockhan, for the sum of $2,956.56, and at the request of defendants executed
In answer the defendants denied the material allegations of the petition by paragraphs. They admitted that Annie D. Brockhan was the guardian of Willie Brockhan ; that he was insane, and had died in the asylum; and that plaintiff was his sole heir. They further set up in their answer that they are not seeking to subject any part of his estate under their fi. fa., but simply had the same levied upon the entire land as the property of the plaintiff, Annie D. Brockhan. -They further say that whether or not the lien created by Annie D. Brockhan individually and as guardian is in strict law a lien on the ward’s estate is a matter they are not called on to admit or deny, but they assert that in equity they would have a right to establish their lien, inasmuch as the. money advanced by them, which the deed purported to secure, was used to pay off and discharge legal and valid encumbrances and liens against the identical property described in the deed and which existed against the same before and at the time it descended by inheritance to Willie Brockhan. Defendants, however, have levied the fi. fa. only against Annie D. Brockhan, and claim that she is now the sole heir, as shown by her returns as guardian of her deceased ward; that she has ample money in her hands to pay off the debts of that estate; that by virtue of their general judgment they have a lien upon the entire property, and that they have seized and levied on it as her property alone. They allege that the guard, ian, by operation of law, became the administratrix of his estate, and that it appears from her final returns, made September 8,1899, that the guardian has on hand $2,830.19 with which to pay the indebtedness of the estate of her ward, which indebtedness amounts to a much less sum, according to her allegations. Defendants deny that the sale of the property under their fi. fa. would defeat the proper administration of the estate of Willie Brockhan, or cause loss to creditors; and they further aver that the property is not of such value as alleged by plaintiff, that the houses thereon are in bad condition and repair,
On the trial the plaintiff introduced the record of the suit in the city court of Atlanta, the same being an action instituted by Fred and William Koch against Annie D. Brockhan, and Annie D. Brockhan as guardian of Willie Brockhan, filed February. 15, 1898. In this petition plaintiffs allege that Annie D. Brockhan, individually and as guardian of Willie, was indebted to them upon a certain promissory note and coupons attached thereto, in the sum of $3,193.08, besides interest. The petition further alleged that there was a warranty deed givgn under the provisions of the code by Annie JD. Brockhan, and Annie D. as guardian of Willie, to secure the payment of the debt, to certain property in the city of Atlanta, and certain other land located in Fulton county, both of which tracts were fully described, and that they had received a bond to reconvey on payment of the debt. The petition prayed for a general judgment for the debt, and also that a special lien be setup on said tracts of land to be enforced by levy.and sale after filing quitclaim deed. To that petition there appears to have been no answer, and the jury rendered a verdict for the amount sued for, and further found that plaintiff’s special lien be set up as prayed upon the realty described in the petition. On this verdict a judgment signed by the judge was entered accordingly. It appears that an execution following this judgment was issued thereon, and levied upon the property therein described, as the property of Annie D. Brockhan. A quitclaim deed from Fred and William Koch to Annie D. Brockhan individually and to her as guardian of Willie Brockhan was executed on October 31, 1899, and recited that the lands described were deeded by defendants to secure the payment of the debt sued on, and was made for the purpose of levy and sale under the provisions of the code. This deed was recorded in the clerk’s office on November 9, 1899. The levy bore date the same day. Plaintiff also introduced various deeds showing title to the country property in question to be in Annie D. Brockhan, and title to the the city-property to be one half in her, and the other half in
The above are, in substance, all the material facts in the record necessary to a thorough understanding of the issues involved in the present case. After hearing the evidence and argument of counsel, the judge granted an order enjoining the defendants from selling or proceeding to sell the property under the execution sought to be enjoined by the plaintiff in her petition; upon which judgment the defendants below assign error in their bill of exceptions. In'the opinion of the judge, giving reasons for his judgment, it appears that he based the same solely upon the ground that the judgment upon which the fi. fa. issued was void, because that was a suit upon an unconditional contract ih writing, in which the constitution requires a judgment to be rendered without the intervention of a jury.
But we do not think it follows that the verdict in this case was necessarily a nullity. It is true the note declared upon was an unconditional contract in writing, but the petition goes further and seeks other relief besides a general judgment upon the note, alleges that a deed was given to secure the same, and asks for a judgment creating a special lien upon the.property described in that deed. That deed was not attached to the petition, nor was this particular relief sought founded upon any unconditional contract in writing. The case of Palmer v. Simpson, 69 Ga. 792, was one where a specific lien on certain prop
Judgment reversed.