South-Western Railroad v. Thomason

40 Ga. 408 | Ga. | 1869

McCay, J.

1. Very much of the old common law distinction betAveen real and personal property in the administration of the estates ,of deceased persons is done aAvay with by our laAV. Realty is assets for the payment of debts. The administrator may sue for it, Code, section 2449, and in some cases he may even sue the heir for realty: Section 2450. So as to personal property. The heir may compel the administrator to deliver to him the specific property if there be no necessity to dispose of it, and he is entitled to an attachment to compel its delivery: Code, sec. 2558. When practicable, the Ordinary may order a distribution of the estate in kind: Code, sections 2543 and 2545.

Under these changes in our law we see no reason why the heirs may not file this bill to procure from the present claimants the specific effects illegally sold by the administrator, of which they would have been entitled had they no been put. out, of his hands, to a distribution in kind. If the facts set forth in the bill be true, this is the case.

2. There are no debts to be paid, and the Ordinary would order such distribution in kiiid were the effects now in hand. There is therefore nothing in this objection to the bill.

By the 2514th section of the Code, all sales by administrators must be at public sale, (except annual crops sent to market,) and under certain circumstances, wild lands : Section 2516. Stock in a railroad company cannot therefore be sold except at public sale. If the administrator do sell at private sale, as he is not apparently proceeding to sell under the prescribed forms, the purchaser is charged with notice: Code, section 2586.

We do not think the railroad company liable to these plaintiffs for the stock. Such is by no means the effect of the by-law prescribing the mode of transfer. Indeed, the transfer, as to other parties than the company, is complete without any transfer upon the books. If there were a bona fide sale, hr if the sheriff were to sell, the law would compel the company to permit the transfer: Bailey vs. Strohecker, 38th Georgia, 259. The transfer upon the books is only for the protection of the company; it may have liens,upon the stock, 'or it may require this mode in order that its own management may be complete and ‘within its grasp. '

3. But whilst the'railroad company is not liable for this stock to the complainants, it is a proper party to a bill of this character. It has an interest in the decree. It is liable for any dividends it has paid or may pay to one who was not legally authorized to receive them. We hold, therefore, this bill is properly filed in Bibb county, and against the company.

4. 'We think, however, the'present claimant of the stock is not only a proper but a necessary'party. His interest is the principal interest sought by the bill to be affected. The bill charges, howevep, that the complainants do not know who the present claimant is, -and one of the objects of filing the bill is the discovery of that fact. How else are they to find out? Nominally, these complainants are not stockholders. No stock stands upon the book to their names. They have not, therefore, prima facie, a right to examine the books as stockholders, and they have a right to file a bill to get that information.

When the bill is answered, the present claimant of the stock must be made a party, when a decree can be had, fully settling the rights of the complainants as to the company, and to the other claimants.

Judgment affirmed.