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50 Ga. 577

Atkinson v. Keith

Supreme Court of Georgia

Decided January 15, 1874

Supreme Court of Georgia · decided 1874-01-15

<p>1. A creditor of an insolvent estate, who held the vendor’s lien on land which had been sold by the administrator, may proceed by bill against the representative of the estate for the assertion of his equitable claim on the proceeds of the sale.</p> <p>2. The creditor’s debt was contracted in 1859, and the hill was filed in 1869, originally against the administrator, the purchaser and his vendor, and the widow of the intestate who had taken dower, charging notice of the lien on each, and praying a sale of the land for the discharge of the vendor’s lien. By amendments made after January 1st, 1870, all parties defendants were stricken from the bill, except the administrator and the first purchaser, who, it was charged, had not paid for the land. The prayer was also amended, asking judgment on the debt against the administrator, and that the purchaser be decreed to pay his debt due the estate to complainant, and praying an injunction restraining the collection of the debt due by the purchaser:</p> <p>Held, That no necessity was shown why the purchaser should be a party, or for the relief prayed against him, or for any injunction, and the bill should have been dismissed as to the purchaser.</p> <p>3. The amendment to the prayer was a proper amendment, and the bill was not, on account thereof, demurrable, on the ground that the relief then prayed was barred by the Act of March 16th, 1869.</p>

The demurrer was sustained, and complainant excepted · Decided 1874-01-15

Trippe, Judge.

¶11. All the parties to this bill, originally, or made so by amendment, were stricken from the case, except the administrator of G. W. Keith, the deceased debtor, and Moore, the purchaser of the land at administrator’s sale. The bill is for the purpose of asserting complainant’s equity on the proceeds of the sale. We have held that this can be done: See Stallings, executor, vs. Ivey, administrator, 49 Georgia, 274 The estate in this case is shown by the bill to be insolvent. There may be many reasons why complainant is entitled to go into equity. His lien is a creature of equity, and if he could even now assert it at law it could be done only by a proceeding as full and complete in setting forth his claim, as a bill in chancery. Equity has not lost all jurisdiction because a party may proceed at law if he so choose.

¶22. There was no necessity why Moore, the purchaser of the land, should be made a party, or why he should be restrained *580from paying to the administrator the money he owes on the purchase. Courts will not interfere thus with the administration of an estate without good cause shown. We presume the idea for getting an injunction was, that that was the only way to subject the money in Moore’s hands to the lien of complainant. It may as -well be reached in the hands of the administrator as in any other way. Indeed, it is the only proper way, unless good reasons be shown why it should not go into his hands at all. There might be liens on the fund superior to complainant’s, or rather claims against the estate that would have a priority over the vendor’s lien: See Stallings vs. Ivey, supra.

¶33.The last amendment to the prayer asked a judgment against the administrator for complainant’s debt. It is replied, by way of demurrer, that this prayer comes too late; that the Act of March 16, 1869, bars the relief now prayed. The original bill sets forth this debt, the complainant’s right to it, and the bill was filed for its enforcement, and the administrator was a party. All the charges were in the bill at first, on which to found this prayer. It should have been in when the bill was filed. But it is not too late now to make it. The administrator had notice before 1870 that complainant was asserting his right to collect the debt. It is time it was sought to have the land resold. That did not deprive complainant to ask that the proceeds of the sale in the administrator’s hands should be decreed to pay it. It is not introducing a new cause of action, nor an attempt to set up any claim barred by any statute of limitations.

¶4Judgment reversed so far as the bill was dismissed against the administrator.

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