C. M. Compton & Sons v. Pitman

Trippe, Judge. 1. When the legatees are in possession of their legacies by legal authority, and the assets of the estate are exhausted, a creditor may proceed against each legatee for his pro rata share: New Code, section 2467. The right exists between such legatees to call upon each other for contribution, where one has been compelled to advance more than his share of the liability: 8 Georgia, 48. This being so, a creditor cannot conqiound with one legatee, equally liable with another, for less than the pro rata share of that one, discharge his lien on the property received by such legatee, when it is worth the full proportion of the legatee’s liability, and then proceed to enforce the whole balance of his claim on the legacy received by another legatee. It may here be stated that it does not sufficiently appear that there was, or that there could have been, under the provisions of the will of John Speights, an assent by the executrix and a legal delivery by her to Eliza Roberson, of the land claimed to have been so turned over to her before the judgments were obtained. The lands were given to the widow, who was the executrix, for life, and at [619] ■her death to his two daughters, Mrs. Robertson and Mrs. Ray. The executrix did not have the power to select this particular place and give it to either one of the daughters as part of her share. Both the remaindermen had a vested right in the whole land per my et per tout. Indeed, in 186-9, the two legatees, after the death of the tenant for life, regularly and by -legal proceedings partitioned the land. So the question does not arise as to what are the rights and powers of judgment ■creditors, whose judgments are obtained after the legacies have been assented to by the executor and possession delivered to the legatees. The case is simply this, a judgment creditor has a lien on the property of both legatees. A creditor of one of those legatees has a lien on the property of one only. The first creditor, knowing all the facts, for a sum of money less than the value of the property received by one legatee, and less than what is her proportionate liability, discharges his lien on the property received by that one, and proposes to appropriate the whole property received by the other to the payment of the balance of his debt. We do not pronounce ■that these are absolutely the facts, which a jury has found or is compelled to find on the hearing. But we speak of them as presented for the purpose of the injunction asked for. If a creditor have a lien on two funds, and another creditor has a lien on but one of the two, the latter can compel the former to proceed against that fund on which he has no lien. If a plaintiff in execution, for a valuable consideration, release property which is subject thereto, it is a satisfaction of such execution to the extent of the value of the property so released, so far as creditors and purchasers are concerned: New Code, sec. 3658. The equity of these principles covers this case, and if the facts recited are established at the hearing, only one-half of the amount of the executions, not deducting the $1,000 00 paid by Mrs Ray, should be enforced against the land mortgaged by Mrs. Roberson to complainants. The levy should proceed, and the amount the land may bring, in excess of one620 half of the executions, should be impounded, by direction of the Chancellor, to abide the final determination of the cause. 2. It has already been stated that there was no equity, under tbe facts in the record, arising out of the question as to part of the land being turned over to Mrs. Roberson by the executrix before the judgments of the defendants in error were obtained. Nor do the facts shown in the matter of the release by the creditors to Mrs. Roberson, of certain lands of her deceased husband, although he was a co-defendant in some of the judgments, authorize the injunction to be enlarged beyond what is above indicated. Mrs. Roberson’s claims for dower and twelve months’ support, botli of which have been assigned, would exhaust what was so released. It was simply a release of what ceuld not have been made liable to either complainants’ or defendants' claims. Hence, no damage to anybody, and, consequently, no equity can spring out of it. Let tbe injunction be granted, as has been already suggested. Judgment reversed.