74 828 Case 2 119 166 Shackleford vs. Twiggs; Wright vs. Damish. SHACKLEFORD vs. TWIGGS. The granting of an injunction and the appointment of a receiver rest largely in the discretion of the chancellor, and it would require a strong case to warrant this court in interfering with such discretion. Under the allegations in the bill and answer, in connection with the affidavits read at the hearing, there was no abuse of discretion in appointing a receiver in this case. Judgment affirmed. March 17, 1885. BLANDFORD, Justice. [This was a bill to set aside a contract of rent for fraud, and to have a receiver and injunction pending the case, insolvency being alleged. The answer denied the fraud alleged. On the bill, answer and conflicting affidavits, the chancellor granted the injunction and appointed a receiver. Defendant excepted.] WRIGHT vs. DAMISH. This being a suit by preferred creditors against the assignee of their March 10, 1885. HALL, Justice. [Whittendale made an assignment to Wright, for the benefit of creditors, giving certain preferences. Among the preferred debts was a note for $2,000 held by Damish, Inman, Swann & Company vs. Foster, trustee. on which suit was brought. The assignee had made payments on the note, reducing it to $1,216.20. Damish brought suit against the assignee for that amount as money had and received by the assignees for plaintiff's use. Wright set up these facts in his defence, and that he had received notice from Whittendale to defend the suit on the note, as it was claimed that nothing was due thereon. The case was submitted to the court, without a jury, on an agreed statement of facts. He rendered judgment in favor of the plaintiff "against the defendant, Stephen B. Wright, as assignee of Christopher Whittendale," for the principal sued for, with interest thereon. Defendant excepted.] INMAN, SWANN & COMPANY vs. FOSTER, trustee. The jury found the following verdict: "We, the jury, sustain exceptions numbers 1, 2 and 3, and find for complainants $1,500 principal, and $1,499.66 interest to date, the said amount to come out of the tract of land formerly owned by R. J. Willis, deceased, now in possession of Inman, Swann & Co.:" Held, that, construing the verdict by the pleadings and history of the case on its former trials, in respect to the issues made by the pleadings, and giving it a reasonable intendment, it was the intention of the jury to subject all the land which Inman, Swann & Co. bought from Ileard and wife, or which was conveyed to them by Heard and wif, including that subject to dower, and now levied on by virtue of the decree. 65 Ga., 82; 69 Id., 385; 72 Id., 79. (a.) An affidavit of illegality cannot go behind a judgment or decree, and the construction of the verdict would hardly be before the court. The decree in this case covers the land levied on, and the execution follows the decree. Code, §§3671, 4215. Judgment affirmed. March 27, 1885. JACKSON, Chief Justice. [The history of this case and the questions involved may be fully seen by reference to 65 Ga., 82; 69 Id., 372, 385; 72 Id., 79.] Heard rs. Foster, trustee. HEARD vs. FOSTER, trustee. In the case of Thornton, ordinary, vs. Willis, trustee, 65 Ga., 184, 188, this court held that the item of the will invoked in the present litigation did not give the property in kind to the legatees, but after directing the sale of all of it, one-sixth part of the proceeds was to be paid to each of them. (a.) While the claimant in the present case was not a party to the suit in which this land was charged with the payment of the debt due the plaintiff in execution, yet, if she ever had title, she had conveyed it to the defendants in execution jointly with her husband, and they set up her rights to defeat the plaintiff's claim. (b.) If the marital rights of claimant's husband never attached, but her legacy had been diverted and misappropriated by him and the executors of the estate, with the connivance and participation of others, including the defendants, this cannot be set up and determ ined in this case, for want of proper parties. Judgment affirmed. April 2, 1885. HALL, Justice. [This case arose from the levy of a fi. fa. in favor of Foster, trustee, against Inman, Swann & Co., upon certain land, to which a claim was interposed by Mrs. Heard, the widow of Stephen D. Heard, and a daughter of Richard J. Willis, who died testate in October, 1866. His will appointed Heard one of the executors thereof, and the latter qualified and acted in that capacity. The testator directed a sale of his property and a division of its proceeds among six legatees, of whom the claimant was one. Under this power in the will, certain land was sold by the executors, and at the sale was bid off by one Strain, who received a conveyance, and on the same day conveyed to the persons who acted as executors, in their individual names, as tenants in common. They took and held possession for several years, having returned to the court of ordinary the sale, and charged themselves with the price. Heard conveyed his interest (his wife, the claimant, joining him) to Inman, Swann & Co. After this, the land was partitioned Hamlin s. Coleman & Newsom. between that firm and their co-tenants. The estate of Willis has been wound up and. his executors discharged by judgment of the ordinary. The execution now levied upon the land issued from a decree in favor of the plaintiff, charging it with the payment of his debt. Some ten or twelve years elapsed from the close of the administration to the filing of the claim. The property was found subject. The claimant moved for a new trial, which was denied, and she excepted. See the case just preceding this.] HAMLIN VS. COLEMAN & NEWSOM. An execution cannot legally issue, where there is no judgment, or in a case where the judgment has been set aside on motion for new trial; and an affidavit of illegality which set out these facts was not demurrable. Judgment reversed. February 24, 1855. BLANDFORD, Justice. [A fi. fr. in favor of Coleman & Newsom against Hamiin was levied on certain property, and the defendant interposed an affidavit of illegality thereto, on the following grounds: (1.) Because he had moved for a new trial in the case in which the judgment from which the fi. fa. issued was obtained, and the new trial had been granted, unless the plaintiff's would do certain things, which they had not done. (2.) Because no writ of execution could issue upon the judgment thus set aside. (3) Because there was no legal judgment upon which execution could issue. The case was submitted to the presiding judge without a jury. On demurrer, he overruled and dismissed the affidavit of illegality, and the defendant excepted.] Stephens, governor, vs. Montgomery. STEPHENS, governor, vs. MONTGOMERY. Where a homestead has been set apart, all the beneficiaries are jointly interested in the use of the property, and none of them can sever this use. As one becomes of age or dies, the use survives to the survivors until the homestead ceases by the death or arrival at age of all the beneficiaries, in which event, if the head of the family, whose property was so set apart, survives, he will take the property, discumbered of all use thereof by the former beneficiaries. Pending the joint use, property, set apart under the constitution of 1868, is not subject to levy and sale by virtue of a judgment founded on a contract made by one of the beneficiaries since the adoption of the constitution of 1877, although the head of the family may have died, some of the beneficiares still being minors. Judgment affirmed. March 10, 1835. BLANDFORD, Justice. [A fi. fa. in favor of Stephens, governor, against Mrs. N. E. Montgomery was levied on certain land, and the defendant interposed a claim thereto, alleging that the land did not belong to her individually, but was property which had been set apart to her husband as a homestead, and she was merely a beneficiary. The case was submitted to the presiding judge on an agreed statement of facts, which was, in brief, as follows: The husband of the claimant had the property levied on set apart to him, as the head of a family, as a homestead, under the constitution of 1868. He died, leaving his wife, the claimant, and eight children in possession. All of the children have become of age and married, except one, who is a boy of about twenty years of age, and who, with the claimant, is in possession of the land. The claimant is about sixty five years of age. The fi. fa. issued upon a judgment founded upon a contract made by the defendant after the adoption of the constitution of 1877. The presiding judge held the property not subject, and the plaintiff in fi. fa. excepted.] |