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Ingram vs. Jordan.

Set-off. Damages. Torts. Promissory notes. Before Judge JAMES Johnson. Taylor Superior Court. April Term, 1875.

Reported in the opinion.
E. H. WORRILL; PEABODY & BRANNON, for plaintiff in

error.

W. S. WALLACE; BLANDFORD & GARRARD, for defendant.

BLECKLEY, Judge.

The action was upon a promissory note, given by the defendant and payable to the plaintiff or bearer. Besides other pleas, the defendant filed three pleas, called in the record the 3d, 4th and 5th, which were demurred to. The demurrer was overruled, and all the pleas were left to stand. The three pleas drawn in question by the demurrer, all had relation to the same subject matter, which was this: The defendant was damaged by putting into his stables diseased horses belonging jointly, to the plaintiff and his son, the disease being contagious, and being communicated to the defendant's horses, in consequence of which one of the them died and two others were injured. The defendant's consent to the stabling was given without knowing of the disease. The third plea presented the damages by way of set-off, and alleged that the plaintiff, through his son (a joint owner both of the horses and the notes sued on) procured permission to put the diseased horses in defendant's stables by falsely representing that they did not have the disease which they did have. The fourth plea presented the damages, also, by way of set-off, and averred a contract between plaintiff and defendant by which the former undertook and agreed, if the latter would allow the use of the stables, to pay all the damages that might result from the communication of disease to the defendant's horses. The fifth plea presented the damages, generally, by way of bar, and al. Ingram 7's. Jordan. leged that the plaintiff falsely and frandulently represented the horses to be free from contagious diseases, etc.

1. The third plea, if it amounts to anything, alleges a tort, and, therefore, does not present matter of legal set-off to the plaintiff's action, which is founded on contract.

2. The fourth plea is in contract, and is within the Code, which allows the defendant to defend upon a claim of the same nature with the plaintiff's demand. Under this broad rule unliquidated damages may be the subject matter of setoff.

3. The fifth plea is also in tort, and the demurrer to it, as well as to the third plea, should have been sustained.

4. The jury found a verdlict in favor of the defendant against the plaintiff for $325 00. This, we think, was unwarranted by the evidence. The damages proven did not amount to that much in excess of the plaintiff's demand, which stood wholly unimpeached. The evidence fails, moreover, to connect the plaintiff in any legal way with the damages sustained by the defendant. It is not shown that the son of the plaintiff, who alone acted in the transaction, was anything more than a joint owner of the diseased horses. It does not appear that he was in charge of the horses as a copartner of his father, or that he acted as his father's agent. There are glimpses of a partnership, but no sufficient evidence applying to the time of the damage and the transaction out of which it sprang. If, as partner or as agent, he had authority to make the contract alleged in the fourth plea, and did make it, the set-off might be made available. And if he has a real interest in the note sued upon in his father's name, and made the alleged contract without authority from his father, his interest in the note might be reached, no doubt, by proper equitable averments in the plea, if the facts warrant them. So, if the whole injury which the defendant has sustained rests in tort, so much of the note as belongs to whoever is responsible for the tort might be defended by calling into action the equitable powers of the court, through proper amendments to the pleas and the production of corresponding evidence. But the

Hatcher et al. vs. Cade.

mere fact that the plaintiff is a citizen of another state is insufficient. He may reside here in a way to be sued or have property here accessible to legal process; or the son, who is more obviously liable as being the immediate actor, may be here and in a situation to respond to all the defendant's damages.

Let the third and fifth pleas be stricken, and a new trial be granted.

SAMUEL HATCHER et al., plaintiffs in error, vs. JULIUS 'A.

CADE, defendant in error.

55 359 61 146 66 367 82 695

55 339 96 58

1. The legatees under a will may divide an estate among themselves, though

the will direct that commissioners appointed by the ordinary shall divide it. If all the legatees be of age, the division so made binds all; if some be minors and they ratify on coming of age, then all are bound, and the

title of each to the severalty so divided and set apart is perfect. 2. A creditor of one of such legatees must go upon the portion or share al

lotted to his debtor; he cannot subject to his debt any portion of the shares of either of the others,

Distribution. Administrators and executors. Wills. Debtor and creditor. Before Judge JAMES Johnson. Marion Superior Court. April Term, 1875.

Reported in the opinion.

E. H. WORRILL; B. B. HINTON & Son, for plaintiffs in error.

PEABODY & BRANNON; MILLER & BUTT; BLANDFORD & GARRARD, for defendant.

JACKSON, Judge.

Samuel Hatcher died, leaving a widow and children, and made a will providing for the disposition of his property. The substance of the will was that the property should be

Hatcher et al. vs. Cade.

of

of

kept together for maintenance and education until his widow or one of the children should marry, or a child become of age, and then that child, or the widow, if she married, should have her share, and to that end that commissioners should be appointed by the ordinary to divide the estate among them. The widow and children, without waiting for the commissioners to do so, divided the estate among themselves. All were of age except two, and these two acquiesced on coming age. Two of the children were

age,

and one had married when the division was made. Cade, the defendant in error, obtained a judgment, long after this division, against the widow, and levied it upon the lands set apart by the division to Samuel Hatcher and Patonia Hatcher, who claimed it under a deed made to them in pursuance of the division, and before the judgment. The court hield and charged the jury that one individed sixth of these lands was subject to the execution, there being the widow and five whildren left legatees under the will.

1, 2. We think the court erred. The division by the legatees bound each of them who was of age, and when the minors, the claimants bere, assented and ratified on coming of age, they, too, were bound, and each legatee took a several interest as it was allotted to each legatee. Cade was not a creditor of the estate, but of Mrs. Hatcher, and could go only on her separate share after the division. Notwithstanding that the law, or the, will, which is the law here, provides a certain way in which an estate may be divided, if the parties in interest, all being of age, divide, it is legal; and if some be not of age, but when of age assent, it also legalizes the division. This principle has been settled by this court by frequent rulings: Turk vs. Turk, 3 Kelly, 422; Josey vs. Audulph, 13 Georgia, 484; Finch vs. Finch, 14 Ibid., 367.

We hold, therefore, that the court erred in ruling that onesixth of the property levied on was subject to the fi. fa. in favor of Cade against Mrs. Hatcher, and reverse the judgment on that ground.

Judgment reversed.

Murphy vs. Vaughan.

55 361 73 71 74 73

55 36 111 887

FRANCES MURPHY, plaintiff in error, vs. TIMOTHY R.

VAUGHAN, administrator, defendant in error. 1. The widow's claim for year's support will take precedence of any lien

with which her deceased husband incumbered his title, but cannot go back

and throw off liens which adhered to the title when he acquired it. 2. Parties at interest may, by consent, even where one of them has a legal

advantage and might urge the principle of estoppel, treat the proceeds of property sold by an administrator as standing in the place of the property. The agreement of counsel in the present case qualifies the right of each party to the proceeds, just as it was qualified by law in respect to the prop

erty itself.

JACKSON, Judge, dissenting. 1. A mortgage in Georgia is only a security for a debt; it passes no title to the

mortgagee: Code, section 1954; Davis et al. vs. Anderson et al., 1 Kelly,

170. 2. The purchaser from the mortgagor, therefore, acquires title to the property

subject to the lien that the mortgagee has thereon ; but such lien consti

tutes no title, it is only security for a debt. 3. If the mortgagor die, the title to the mortgaged property is in his estate;

and that property so mortgaged is subject to di bution by his administrator, and all expenses of administration should be paid before the debt se

cured by the lien of the mortgage. 4. Among these expenses of administration the statute distinctly names twelve

months' support of the widow and orphans of the deceased, as if to rank it higher than any debt and put its payment beyond peradventure, if the deceased died possessed of any property at all: Elfe vs. Macon Building and Loan Association, 26th Georgia Reports, 197 ; Cole vs. Elfe, 23d Ibid.,

235 5. The only property of which deceased, in the case at bar, died possessed, is

personalty; certain furniture which he purchased from a mortgagor; that furniture, or its proceeds, is not enough to pay the debt due the mortgagee and the year's support. It was in his possession when he died. The title was in him, subject to the mortgage debt. It was administered as his property and sold as such, and the proceeds should first be applied to the expenses of administration, in which the statute includes the year's support for the widow and orphans: See Code, sections 2571, 2533; Rust, John

son & Company vs. Billingslea, 44th Georgia Reports, 306. 6. It can make no difference in principle that the property was once partner

ship property, and deceased a member of the firm; the question is, did he buy, whose was the title at his death? Did it pass out of the partners into him, and was he possessed of it as his own at his death, subject only to the

mortgage debt ? 7. Where the mortgagee himself administers on the estate of deceased, returns the property in the inventory under oath, sells it as the property of

VOL. LV. 24.

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