88 Ga. 664 | Ga. | 1891
Judgment affirmed.
The action, was by Rudolph, ordinary, for the use of Mary Boswell, the child, and N. M. Wright, J. A: and R. T. Staten, the grandchildren of Ransom Barnes, on the bond of Underwood as administrator with the will annexed of Ransom Barnes, alleging that this bond was given on January 7, 1867; that Underwood took charge of the estate of the value of $20,000, and in December, 1868, sold real estate to the amount of $1,050; that other large amounts came into his hands to be administered, but he has neglected and refused to pay petitioner anything for his usees, and neglects and refuses to make returns; that Mary Boswell is entitled to one distributive share of the estate, and the other usees to one in right of their -mother Susan Staten, deceased. The case was formerly before the Supreme Court. 84 Ga. 79.
On July 24, 1890, the declaration was amended by strikiug the names of N. M. Wright, J. A. and R. T. Staten as usees, and making R. T. Staten a party as administrator of Susan Staten. And further, by charging that Underwood combined with C. Cavender and others to defraud the estate out of land belonging thereto, lying in Gordon and Calhoun counties, which at the time of the pretended sale to Cavender was worth $4,-000; that in order to carryout the fraudulent scheme the administrator'advertised the land for sale without
The defendants pleaded not indebted, payment in full to plaintiffs of their distributive shares in 1874, and the statute of limitations of twenty years. Further, that the entire subject-matter of the amendment of July, 1890, was by the plaintiffs sued on and embraced in a bill in equity in Gordon superior court to set said sale aside in 1875, and that about four or five years thereafter they dismissed the bill, and more than six months having elasped since such dismissal and before the filing of the amendments, the same is barred; that the courthouse of Gordon county was burned down in 1888, and the record of said case destroyed, and therefore they cannot attach copy of the equity proceedings. Further, that defendants are not guilty of the wrongs, etc., charged in the amendment; and that the sale of the Gordon county land was fair, honest and to the highest bidder, after advertising according to law, when defendant Cavender (one of the securities sued), the highest and best bidder, became the purchaser for $1,050, which was a very fair valuation for the property. Further, that plaintiffs at the commencement of the action were and still are each indebted to defendant Underwood, administrator, $450 principal, with interest, and $84.90 costs, on a judgment obtained in Gordon superior court,
There was a verdict for defendants; plaintiffs’ motion for a new trial was overruled, and they excepted. The motion assigns error upon the following parts of the charge of the court:
“The plaintiffs insist that judgment could not be enforced because it was barred by the statute of limitation and for other reasons, but the statute of limitation is not necessarily settled. If it was the understanding that was to be estimated in the settlement that was made, and it was so made, then it would not make any difference whether it was barred by the statute or not. The plaintiffs insist further, under different heads, that they are not chargeable for this judgment for certain reasons. The defendant sets it up under the head of another plea, his position being this : that if it should be held that the settlement that he claims to have made with the parties was not a binding settlement or agreement so as to embrace this judgment, then he has a right to set it off; if he still owes them their part of the disti'ibutive shares, that they still owe him the amount of this judgment obtained against them. On that subject I charge you, unless more than ten years have elapsed since the last entry made by an officer to the commencement of this suit here, that it would not be a bar, and the defendant might plead it as a set-off'as far as it goes against any demands that the plaintiff's might have against him. In other words, they would have to account, they being heirs of the estate. They would have to account in