47 Ga. 650 | Ga. | 1873
Lead Opinion
This was a bill filed by the complainant as administrator de bonis non of Burton T. Dennard, deceased, against the defendants, to set aside a sheriff’s sale of certain described lands, on the alleged ground of fraud, and to recover the possession thereof, for the purpose of administering the same for the benefit of the creditors of his intestate. On the trial of the case, the jury, under the charge of the Court, found a verdict for the defendants. A motion was made for a new trial, on the several grounds set forth therein, which was granted by the Court, and the defendants excepted. It appears, from the evidence in the record, that in the year 1851, William Dennard; the father of the complainant’s intestate, died, leaving a widow, Irene Dennard, and two children, Burton T., and Julia, the latter having intermarried with one William M. Brady. William Dennard, at the time of his death, left a
A relinquishment of Mrs. Julia Brady’s interest in the land conveyed to Dawson by her husband, whether as dower or otherwise, purports to have been executed by her on the 30th of December, 1856, in the county of Sumter, and witnessed by Ronaldson, clerk of the Superior Court. Since the death of Brady, his widow, Julia, has intermarried with Wilcher, and was examined as a witness on the trial, and stated that
In this suit between the administrator de bonis non of Dennard and the defendants, Mrs. Wilcher was a competent witness, and it was competent for her to testify as to acts and declarations of her husband at the time the deed was signed • there was no confidential communications revealed which the law prohibits. The charge of the Court to the jury, in view of the real questions involved, was so confused and unsatisfactory that it was calculated to mislead the jury, and most probably did mislead them. In view of the facts contained in the record, we affirm the judgment of the Court below in granting the new trial.
Let the judgment of the Court below be affirmed.
Concurrence Opinion
concurring.
The contract or agreement made at the time the caveat to the will of William Dennard was withdrawn, doubtless was in the language of this Court, in 35 Georgia, 190, “ a.n obligation for a conveyance which a Court of equity will enforce.” This is true, and it could have been enforced against Burton T. Dennard or against his representative. It may further be true, as remarked by Judge McDonald, in 24 Georgia, 135, that after the payment of a certain debt against the estate of William Dennard, “if a judgment should be obtained, Mrs. Brady, (now Wilcher,) has the highest claim under the agreement of compromise. That agreement was never executed, and she has a right to demand its execution before the property can be appropriated to the debts against her deceased brother.” I shall not contest the truth of this last proposition. It was made in a case where there was a contest as to her priority over other creditors. But I cannot think that the Judge or the Court in either of these cases meant that Mrs. Wilcher had such a lien on, or legal or equitable title to, or interest in any portion of Burton T. Dennard’s property by virtue of that contract, as to be good against a bona fide purchaser from Burton T., or under a judgment against him or his estate. It was an equity in her that was not good against legal rights or titles derived from or through him, unless the holders thereof were affected by notice. As to all such persons, and even as against a purchaser from her husband, William M. Brady, without notice, for he under the law as it then was, had the right to sell her interest as heir, if there were no debts, she was simply a creditor, a creditor it is true, with a certain priority, but with no such charge on the property or title to it as to prevent a bona fide sale by him or by the sheriff or by her husband, except if made by the husband before her debt was paid, she stood with the same right as all other creditors, the right to subject all the property of her debtor to a due administration and payment of debt.
I have said if there had been no debts against the estate of
In this case the administrator charges that there are debts. He does not specify any in his bill, not even the claim of Mrs. Wilcher, and further shows he was aware of the purchase by the defendant from W. M. Brady, the husband. No point was made on this omission to set out the debts which “it was necessary to pay,” nor the creditors, nor was any objection made on the trial to the evidence that Mrs. Wilcher was a creditor. There was no proof of any other debts. The defendant sought by his answer and proof to show that Mrs. Wilcher was not a creditor, who could have her debt enforced against the property bought by him from her husband, and also, at sheriff’s sale; that she had joined her husband in the conveyance; that her debt should be credited, or paid with certain money alleged to be in the administrator’s hands, received from defendant, and that, to allow a recovery for her benefit, would be to permit her to commit a fraud on him, etc. Thus the issue, the whole contest was made to turn on the question, whether Mrs. Wilcher could enforce her claim or debt on this land, and this too when she was not a party.
In my opinion, no decree, that she has no legal right to enforce her judgment, if she has a judgment, or should obtain one, against this property, or that the administrator cannot administer it for her payment, could bind her, unless she be a party to that decree; and therefore no attack on her right as
The question may be asked how can a defendant in such a case show that there is no creditor or that any particular person has no valid debt, not knowing who the creditors are or who that particular creditor is ?
Where an administrator, under the provisions of section 2450 of the Code, which is but a statutory affirmance of a principle existing long before the Code, sues to recover lands from a purchaser holding under the heir-at-law and seeks to avoid that sale on account of the “necessity to pay debts,” in my opinion it is not only “necessary for him to show on the trial that it is necessary to pay debts,” but he should set forth the debts and the creditors in his bill in order that the defendant, the purchaser, may be put on notice as to the facts on which his property is sought to be condemned. If it can be taken from him for that purpose and no other, and is to be adjudged liable to pay a debt, he should have notice of what is thus attempted to be asserted against him. Any other rule would work manifest injustice, would disable heirs-at-law from ever availing themselves of their right to possess or sell, or subject themselves or the purchasers from them to the danger
I therefore concur in affirming the judgment granting a new trial.