Ware v. Ware

42 Ga. 408 | Ga. | 1871

Lochrane, C. J.

This case presents for review the order of the Judge below, granted at Chambers, October 18th, 1870, dismissing the bill of complainant.

The bill was brought by Mary S. Poythress, by her guardian, A. O. Ware, charging that Daniel Ware became the administrator of Sarah Jane Poythress in 1864, that in 1866, she had tiled her complaint in equity to Troup Superior Court, (which is attached as an exhibit,) against him, and had obtained thereon a verdict at the November Term, 1866, which we will recite as a statement of the case, and for the reason that the whole controversy now before us turns upon that verdict and decree. It is as follows: “ We the jury find and decree that Daniel Ware, as administrator of the estate of Sarah Jane Poythress, deceased, for whom he was trustee when she was in life, has in hand, belonging to said Mary S. Poythress, arising from said trust estate, $2,850 00, which we accordingly decree against said Daniel Ware, as administrator of said Sarah Jane Poythress. We also find that the same was invested by the said Daniel Ware in the residence place, and eighty acres of land adjoining the town of LaGrange, and north of the grave-yard in said place, whereon the said Daniel Ware and his family now reside, and that the said land and premises are subject to the discharge of the aforesaid sum to the complainant. We, therefore, decree to the complainant a specific interest in said property to be an undivided interest therein to the value of $2,850 00, to be paid her, or to said A. C. Ware, her guardian, or to his successors, or her heirs or assigns, out of any sale, disposition or division of said place that may hereafter take place, without abatement as to amount, aud to bear interest from the date of this decree, and this decree shall operate as a conveyance to her of said undivided interest in said land and premises, as above expressed and described. We further find and decree that a compliance with this decree shall operate as a full acquittance, and discharge of all further liability of said Daniel Ware, and his securities on his bond as administrator of said Sarah Jane Poythress.”

The bill charges, that she has applied to defendant for a sale, which was refused, and that he is in collusion with others and committing waste, and that the administrator and his security are wholly insolvent. The bill prays for the appointment of a Receiver, and for a sale of the property.

The defendant pleaded to this bill of complaint, the former bill of complaint, alleging that there is neither new matter or parties, and that the question is res adjudicata.

We need not go into the volume of papers connected with this case, farther than to say, the whole questions made upon the present bill are no where sufficiently met by any legal or equitable defense that would authorize this Court to hold the parties estopped in prosecuting their rights to a partition of the property by sales. The decree gives a specific interest in this property, to the complainant, to the amount of $2,850 00, and operates as a conveyance to that effect. The character of the litigation now developes just such a case as belongs peculiarly to a Court of equity, to take jurisdiction of and determine. This ward may be delayed in the recovery of her rights, after adjudication by the Courts, interminably by the introduction of new matters arising out of the facts disclosed by the record, unless the Chancellor lays his hands on this property, and compels all parties in interest to come forward and present their respective claims for adjudication and settlement. It would end in the multiplicity of difficulties to refuse now to examine the jurisdiction invoked, and interpose by proper process to compel a settlement of the interest by decree vested in this ward. And we, therefore, reverse the judgment of the Court below dismissing the bill for want of equity, and direct him. to appoint a proper Receiver, who shall take custody of the property, protecting the same from waste and injury, and that all the parties in interest be cited to appear, and be made parties to this bill, and their respective rights and claims be adjudicated, and the property sold for the purposes of division among the claimants.

Judgment reversed.