Drummond v. Hardaway

By the Court. Benning J. delivering the opinion. All who are heirs of the deceased Robert Drummond, are parties to the bill, and parties plaintiffs. It may be inferred therefore, that none of the heirs of the said Robert, wishes for an administration to be had on the said Robert’s estate, or is opposed to the heirs winding up the estate for themselves. There were no creditors of the deceased at the time of his [437] death, and consequently, there can be no person who, as creditor, might be Opposed to the heirs doing this. Robert S. Hardaway, the defendant in the bill, was indebted to the deceased at the time of the death of the latter, on divers accounts. These are the leading parts of the bill, generalized. And upon them the question is, whether Hardaway, the debtor of the intestate, can be sued in .equity for an account-of the debt, by the heirs, or only by an administrator. As there were no creditors, the equitable title to what Hardaway the debtor owed, vested completely and exclusively in the heirs. And it is a general principle, that a perfect equitable title is sufficient to support a suit in equity. Suits in equity upon such a title, and in cases not unlike the present, have been frequently upheld by this Court. As, in the case of Jonekin vs. Holland, 7. Ga. Rep. 590. In that case, a tenant of land had a complete right to the land under the statute of limitations, as against the heirs of the person in whom was the adverse title, but not as against the administrator of that person. But the heirs were all of age, and there were no creditors of the deceased person. The heirs therefore, had the complete and exclusive equitable title to the land; and consequently a recovery of it by the administrator, would have been a recovery to their sole use. This Court held, that the tenant might in equity enjoin a suit for the land by the administrator. And this was holding, that the tenant might set up in his defence, the equitable title of the heirs, and the bar to that title, to defeat the legal title of the administrator. And, as in the cases of Josey and others, vs. Audulf, 13. Ga. Rep. 483-4. Smith, adm’r vs. Gentry, 16. Ga. Rep. 31. Lyon vs. Howard, and others, Id. 481. Shorter and others, vs. Hargraves, 11. Ga. Rep. 658. The last case is, indeed a precedent for the present one. in that case, the bill was filed by the heirs of E. S. Shorter [438] against Hargraves, as the administrator of Jas. H. Shorter, who had been an administrator of E. S. Shorter, for an account of the liabilities of Jas. H. Shorter as such administrator of E. S. Shorter. Hargraves insisted, that he was liable to account for those liabilities, only to an administrator of E. S. Shorter. But this Court held, that he was liable to account to the heirs of E. S. Shorter, and therefore it sustained the bill. Nor was there in the bill in that case, even any allegation, that there were no creditors of E. S. Shorter. Indeed, a perfect equity has been held by this Court, to be a title that may be asserted even at law. Pitts vs. Bullard. 3. Kelly 17. We think therefore, that the heirs of Robert Drummond had the right to bring this bilL And if they had, there was equity in the bill, as it was not multifarious. Every part of this bill is connected with some other part. But we think, that Wm. F. Drummond ought to be a party or that some excuse should be given for not making him a party. The settlement between him and Hardaway is attacked. He therefore is at least a proper party to the suit. However, considering his entire relation to the case, I cannot myself regard him.as a necessary party to’the suit. The conclusion of the Court therefore is, that the Court below should not have sustained the demurrer. Judgment reversed.