Koockogey v. Adm'rs of Flewellen

Lumpkin, J. By the Court. delivering the opinion. It is not true, as the record shows, that the recovery in favor of Lewis J. Davis against Flewellen, as the administrator of N. H. Harris, is a judgment guando. Flewellen admitted by his plea to the action that he had certain debts of the intestate in his hands; and the verdict of the jury and the judgment of the Court were, that the demands due Davis should [610] be satisfied out of these assets, which are specifically set forth in the judgment. When this case was up before, (5 Ga. Rep. 274) this Court said, “It is the duty of the administrator when sued, so to plead as to protect all the creditors, of whose debts he had notice, in their rights according to the dignity of their debts as established by law, and if he fail so to do he becomes personally responsible. He is cognizant of the assets in his hands. It is his duty, and also his interest to exhibit the assets, his actings and doings in the administration, the debts due, their dignity, &c., and cause a judgment to be entered which will protect all parties in interest, and himself, also. And ii this cannot be done at law, he has the right to invoke the aid of a Court of Chancery. If therefore, there were demands against him of which he had notice, of equal dignity and greater amount than the value of the assets in his hands at the time of the rendition of the judgment, and he f.tiled to plead them, so as to protect himself, he is individually chargeable; and equity will not disturb the relation which the law has established between himself and the judgment creditor.” Thus it will be seen that, by the judgment of this Court there was no equity in favor of Flewellen as to those debts, which were known to him at the time judgment was rendered in favor of Davis. But one H. M. Smith had sold a tract of land to N. H. Harris in his lifetime, givi ng Harris his bond for title; Harris paying about one half the purchasemoney! 'Harris sold theland with covenant of warranty to one Noah Laney, with the knowledge of Smith. For the residue of the purchase money due by Harris to Smith, Harris, by agreement with Smith, took up Smith’s note to one Hays, substituting his own in lieu thereof, with Smith as security, and at .the same time-there was a verbal understanding between Smith and Harris-that if Smith had the note to pay, that the balance of the original debt upon the land should be considered still due to> [611] Smith. Smith paid the note to Hays, and then brought ejectment in Alabama and recovered the land of the heirs of Laney. Upon this state of facts, we held- that the substitu ion of Harris’ note for Smith’s to Hays was, in law and in equity, a payment of the amount of the purchase money due by Harris to Smith for the land; and extinguished all claims on account of the land, against the administrator of 11 arris, growing out of the original contract of sale; and that Smith was a suretyship creditor only, and as such subrogated to all the rights of Hays in the distribution .of the assets ; and that he was entitled to be let into a pro rata participation as a note creditor of the fund in hand. This claim ot Smith’s-however, to be off-setted with the money paid to him by Harris on the jand, and which he, Smith, was bound to refund. And further, that the Laney claim against the estate of Harris, on account of the breach of warranty, was good and must be allowed. I will add right here, that Flewellon was notified of the pendency of this suit, and he was excused from interferring because his letters of administration did not reach into a foreign jurisdiction. Smith, however, ought never to have recovered this land. The facts already recited show not only that he was cognizant of the sale by Harris to Laney, but that he had been fully paid by Harris for the land. Let this however, pass. Now the supplemental bill charges that the Laneys-have nevetbeen evicted by Smith, but that they are still in the possession and enjoyment of the land. And that Smith (acting upon the suggestion of this Court, we suppose,) had executed and tendered a deed to the Laneys for the land, a copy of which is appended to the bill. If this be so, the Laneys have no claim for damages against the estate of Harris. Their title is complete, and Smith is the only creditor whose debt is to be provided for in the distribution of the assets; and this can be just as well done at law as in equity. And this [612] being so, there is no equity in the bill as against Koockogey, ■the assignee of Davis. To, give full protection to the Laneys, Smith, before he is ,3et in, should be required to file in the Clerk’s office, a deed ¡to theLaneys for the land, and also a release to the judgment an ejectment in Alabama; and all benefits resulting to him therefrom. Should he neglect or refuse forthwith to do this, then he should be remitted to the status which he occupied under the former decision of this Court in this case: and the heirs of Lauey will then come in for the purchase money, with interest thereon, paid by Noah Laney to Harris, for the land. A judgment on one of the land notes for $300, and a note of $600 are still due the estate of Harris by the Laneys. The amount of these demands should of course be set-off against the claim for damages due the Laneys. In any event, whether Smith or the Laneys be the creditor, the matter can just as well be adjusted by plea to Koock■ogey’s suit, as in equity. The rights and liabilities of all ■other parties to the bill are to be regulated by the law, as settled by this Court in its former judgment in this case. Of course, if any of the assets, out of which Davis’ judgment was to be paid, have been lost or rendered unavailable, without, fault on the part of Flewellen, his- estate, or that of Harris, should be relieved from liability to that extent. Judgment reversed.