166 Ga. 675 | Ga. | 1928
Lead Opinion
The LaGrange Banking and Trust Company filed its petition in Meriwether superior court against E. P. Hurst of Coweta County, administrator of the estate of Tobe Strozier, deceased, and Mary Ann Strozier Mitchell, who resides in Meriwether County. Plaintiff alleges that it holds the note of Tobe Strozier for the principal sum of $1095 secured by a deed in which Tobe Strozier conveyed to the plaintiff 100 acres of land located in Meriwether County to secure said note; that suit has been filed by the plaintiff in the city court of Newnan, Coweta County, against the administrator, in which the plaintiff prays for a judgment for the amount of the note and for a special lien upon said land; that the administrator has made an effort to dispose of said land and sell either the equity or the full title thereto; that under some pretended claim Mary Ann Strozier Mitchell has filed a claim in the court of ordinary of Meriwether County; and that she is insolvent. Plaintiff prays for the appointment of a receiver to take charge of said property, to pay off any prior liens thereon, and to hold the residue of the rents and profits pending the suit in the city court of New-nan ; and that such receiver sell the property and apply the net proceeds to the payment of plaintiff's debt.
The answer of Hurst, the administrator, admits the allegations of the plaintiff's petition, joins in the prayer for a receiver, and prays that he be appointed as such. Mary Ann Strozier Mitchell filed her plea and answer in which she sets up that the land in con
The judge of the superior court ordered that Hurst be appointed receiver under $300 bond, with authority to rent the land (giving the. widow the refusal), to collect the rents for the year 1927 and until the case is finally disposed of, to protect and preserve the property by insuring the dwellings and otherwise, to pay the taxes out of the rents received, and to hold the balance of the rents subject to further order of the court. Error is assigned upon this judgment.
As admitted in the brief of counsel for the plaintiff in error, “the only question involved is the right of the trial court to appoint a receiver in this case.” If this be true, it is immaterial at this time to consider the validity of the administrator’s sale which is attacked in the answer of the defendant Mitchell, even though as the lawful widow of Tobe Strozier, deceased, she was properly awarded the farm which is now the subject of controversy as a year’s support, and the sale made by the administrator be void not only for the reason that the administrator can not sell property which has not been reduced to his possession, but for any other reason. Conceding that under the principles announced in Daniel v. Wilson, 91 Ga. 238 (4) (18 S. E. 134), and Whatley v. Watters, 136 Ga. 701 (2) (71 S. E. 1103), a widow is by law entitled to have the equity in land subject to a deed for debt set aside to her as a twelve months support, the court did not err, under the facts appearing in this record, in appointing a receiver to hold the property until an adjudication of the issue involved. While the plaintiff in error in her answer denied insolvency, there was ample evidence to the contrary; and it can not be said that the judge erred in finding her-to be insolvent. The Civil Code (1910), § 5475, provides that “When any fund or property may be in litigation, and the rights of either or both parties can not otherwise be fully protected, . . a receiver of the same may be appointed (on a
Counsel for plaintiff in error argues that since the bank, following the ruling in Stevens v. Worrill, supra, did not elect to bring an ejectment suit and ask for mesne profits, the court should not have granted a receiver. As has frequently been the case, and as suggested in the Stevens case, the institution of an action to recover the land is not the sole and exclusive remedy provided by law. The language used in the decision in the Stevens case, holding that the widow is entitled to the rents and profits, is “until the institution of an action to recover the land or other appropriate pi'oceedings by the grantee in the security deed.” It seems to us that where waste is being committed, where there is uncertainty whether the property pledged is of adequate value to pay the debt and accumulated interest, where the taxes upon the property have not been paid, thus creating a superior lien in favor of the State which diminishes the security of the creditor, and where the party in possession is insolvent, there is good reason for the appointment of a receiver, and that an application for the appointment of a receiver is an “appropriate proceeding” “to subject the land and the mesne profits to the debt due him.”
Judgment affirmed.
Concurrence Opinion
I concur in the judgment. In my opinion the proper construction of the judgment setting aside a year’s support is that no interest whatever in the realty was set aside. The appraisers set aside personal property specifically named. I can not concur in what is said in the opinion with regard to the necessity