177 Ga. 837 | Ga. | 1933
J. A. Williford for himself and as agent for his sister, Mrs. Nell Williford Beid, sued out a distress warrant against H. T. Welch for the proportionate part of the year’s rent due them as remaindermen from the date of their mother’s death on March 19, 1932, to January 1, 1933, the rent being past due and unpaid. The distress warrant was levied by the sheriff on certain personal property of H. T. Welch. No counter-affidavit or bond was filed, but Welch filed a petition against J. A. Williford and Mrs. Nell Williford Beid, to enjoin them from enforcing the distress warrant, and to recover damages. The defendants filed a demurrer, which the court sustained on the ground that Welch had an adequate remedy at law, and dismissed the equitable petition. This petition alleged in substance the following: W. D. Williford, the father of the defendants, died testate on March 28, 1918. In his will provided: “Item 2. I give and bequeath to my beloved wife all of the property I possess, for and during the time she remains my widow. Should she remarry, then and in that event she is to have one third of all of my property. This bequest I make to my wife in lieu of both dower and year’s support, in fee simple.
The petition alleged that the defendants were insolvent, and that the estate of W. D. Williford was insolvent; that a judgment against either or all of the defendants would be worthless, and would afford plaintiff no relief, either for damages already caused, or for damages which might be sustained in the future. Welch, therefore, had no adequate remedy at law in order to protect his interests. In Arnold v. Carter, 125 Ga. 319, 325 (54 S. E. 177), it was held: “Damages arising ex delicto can not be set off against a cause of action arising ex contractu, but a defendant sued at law upon a cause of action arising ex contractu may, in equity, set off damages arising ex delicto, when the plaintiff is insolvent or a non-resident.