Wade v. Powell

By the Court. Benning, J. delivering the opinion. The first question is, was there any equity in the bill ? The bill prays for an account from the trustee, for the removal of the old trustee, and the appointment of a new one, and for an injunction to restrain the prosecution of the trover suits, and to restrain P. L. Wade from taking possession of" the trust property. There was equity in the bill, if Mrs. Powell was entitled to. the possession and use of the negroes constituting the trust-.property; and the bill was a-measure necessary to enable horto obtain their possession and use. [1.] We think that Mrs. Powell was entitled to the possession and use of the trust property. According to the terms. of the deed, the property was to be for her sole and separate • use; and the trustee was to have nothing to do except merely to hold the legal title to the property. In such a case, the cestui que trust is, unless there is some - special reason to the contrary, entitled to the possession and use of the property. (Wilkins and Wife vs. Williamson, 14 Ga.) Some of the trust negroes are the “family servants” of' Mrs. Powell. To the possession of these she is entitled in ■ specie. [649] Was the bill a necessary measure to enable Mrs. Powell to obtain the possession of all or any of the trust property ?' A part of the negroes were, as we have seen, “ family servants.” An action of trover would not have been such a measure as could have been depended on to secure the delivery of these negroes to Mrs. Powell. Nothing but a decree in Equity for their delivery to her, would be what could be relied on for that purpose. The negroes were all in the possession of her husband; and him she could not have sued at all, at Law, as the wife cannot, at Law, sue the husband. (1 Black. Com. 444; 2 Story’s Eq. §1368.) In Equity, however, the wife may sue the husband. (Id.) It is plain, from several things which appear in the bill, that Powell, the husband, is insolvent, although the bill does not, I believe, contain a distinct allegation that he is insolvent. The insertion of such an allegation would strengthen the bill. Being insolvent, it is doubtful whether a judgment-against him, even for damages, would be worth any thing. This will appear more distinctly presently. As between Mrs. Powell and Mr. Powell, therefore, the bill was a measure necessary to enable her to obtain the possession of the trust property, or perhaps to obtain any thing. Was it so, as between her and Peyton L. Wade ? Powell, the husband, was, it is true, in the possession of the trust property, but he was in the possession of it as the agent of Peyton L. Wade, and he had been sued for it in trover, by Wade. Powell, therefore, was bound, in law, to return the property to Wade. This obligation would not have been at all impaired by the existence of the bill of Mrs. Powell against him, if that bill had been against him alone. It would still have been his duty to return the property to Wade, his principal. It may be doubted, perhaps, whether a judgment against him in such a bill, would have been a protection to him from Wade. [650] In order, then, to make it certain that a decree against Powell would insure the delivery of the property to Mrs., Powell, it was necessary for lier to liave the use of something which would prevent Powell from being deprived of the property by Wade. There ivas nothing which could be this something except a-bill in which not only Powell, but Wade also, should be a defendant ; and a bill which should be accompanied by an injunction against them both, to prevent the one from depriving the other of the possession of the property. As between Mrs. Powbl] ^nd Wade then, also, the bill was necessary to enable her to obtain the possession of the trust property. ■ •; The necessity for the bill becomes the more manifest to us, if we boar in mind'-that Powell ivas insolvent, and that a portion of the trust negroes' were such as Mrs. Powell was ■entitled to the possession of specifically. [2.] There was, therefore, equity in the bill as against both Powell and P. L. Wade. [8.] And this equity was such as was sufficient to authorize the granting of the injunction as a part of the interlocutory relief to which the plaintiff was entitled. As to these two defendants, then, wo think that there was. equity in the bill, and equity to authorize the granting of the injunction; and, of course, equity to make that injunc- - tion perpetual on the hearing. But if the ease was such that Mrs. Powell was entitled to have this extent of relief against Wade, it was such that she was entitled to have against him the whole extent of relief which the case called for. When equity gets possession of a case for partial relief, it gives complete relief. Mrs. Powell was therefore entitled to have from Wade and from Powell, his agent, a general account of the trust; and also, to have Wade removed from the trusteeship, for the bill states a case of breach of trust on his part. But as to Jesse Wade, we see nothing in the bill which.' makes out a case of any sort against him. The bill contains [651] this allegation: “ That the said Peyton L. Wade has, by himself and his agents, had the care and management of the said trust estate to the present time, by himself and his agents, Jacob S. P. Powell and Jesse Wade.” And this is the only allegation which it contains, with respect to him. •And this fails to say that he is in the possession of any of the trust property or any of the proceeds of it, or that he ever was, or to say any thing else that would make out a case for relief against him. AgJ;oJbfejj»i^3lK£fore, wo think it true that there is no'equity^K^^jpAjj^^jinsequontly, that as to him the demurrerwi^Kohavo beeir slstained. The only remaining questidk in*tíi(í^^[|^j¡feether Peyton L. Wade could be sued ii// Murr ay^Oounty," in he resided in Scriven County or in And wo think that he coulol^ The case(yg|^mie in which both P. L. Wade and Powell werelu?$§$^try parties, in order to insure the certainty of a part, if not the whole, of the relief to which thet complainant was entitled. Of them, one resided in Murray,' and the other in Scriven or in Whitfield. The suit, therefore, had to be in one or another of these counties; and there appears no reason why it should be brought in either of the latter two rather than in the first. This case is not at all like that of Jordan vs. Jordan & Carter, which has been so often before this Court. In that •case, neither defendant resided in the county in which the suit was brought; and the principles recognized in that case are such as sanction the propriety of the bringing of this suit in Murray County. We therefore affirm the judgment of the Court below, except so much of it as relates to Jesse Wade.