Williams v. Jenkins

11 Ga. 595 | Ga. | 1852

By the Court.

Warner, J.

delivering the opinion.

This was an application to the Chancellor to appoint a receiver, on the ex parte application of the complainant. The facts alleged in the bill, were verified by the affidavit of'the complainant.

[1.] On a proper case made, it was competent for the Chancellor to appoint a receiver, on the exparte application of the complanaint, before the answer of the defendant was filed. Jones vs. Dougherty, 10 Georgia Rep. 274.

[2.] Do the allegations in this bill shew that the discretion of the Chancellor in the appointment of a receiver, was properly exercised ? The complainant is the owner of one-third part of valuable property consisting of a saw and grist mill, as a tenant in common with the defendants, who are in possession of the same, which is ot the annual value of one or two thousand dollars.

The complainant alleges the bad management of the mills by the defendants — their intention to defraud him, as manifested by their various acts, which the complainant specifically alleges, and that they are insolvent, except as to their interest in the mill property ; that there is now due the complainant for the original purchase money of said mills from the defendants, the sum of $3,716 00. Assuming the original price paid for the property, to be its true value, (to wit) $5,500 00, the two-tliirds thereof, which the defendants now own, is worth about the sum of $3,666 00, which is less than the amount of the original purchase money now due the complainant, so that when the original purchase money shall be paid to the complainant, (for which he asserts his vendor’s lien) the defendants will have nothing to pay him for his share of the annual rents and profits thereof. The defendants are in the possession and enjoyment of the property, and refuse to allow the complainant to participate in the same, in any manner whatever. The complainant shevys that he has offerred to take possession of the mills, and give bond and security to the defendants, to account to them for their share of the pofits ; or to let them continue in possession on their doing the same, to account to him for his share of the profits, which they have refused. The plaintiff in error, however, insists that á Court of Equity will not interfere, and appoint a receiver, at the instance of one tenant in common against another, who is in possession, because the party complaining may relieve himself at Law, by a writ oí partition. Concede that the complainant in this case might have a writ of partition at Law, for his share of the property, what adequate remedy has heat Law, in the meantime, for the profits of the mills, while in the possession of the defendants, who are insolvent ?

We entertain no doubt that a Court of Equity has jurisdiction to appoint a receiver, at the instance of one tenant in common against his co-tenants, who are in possession of undivided valuable property, receiving the whole of the rents and profits, and excluding their companion from the receipt of any portion thereof, when such tenants are insolvent. 2 Story’s Equity, §. 833. Street vs. Anderson, 4 Brown’s Chan. Rep. 415. Milbank vs. Revet, 2 Merrivale, 405. The discretion of the Chancellor in appointing a receiver in this case, was, in our judgment, properly exercised; therefore, let the judgment of the Court below be affirmed.