Degraffenreid v. Rawson & Watson , 23 Ga. 11 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

Two grounds were insisted on, in support of the demurrer; one, that the suit was brought in Baker, and DeGraffenreid, one of the defendants, resided in Dougherty; the other that an adequate remedy at law existed.

The validity of the first ground depends upon this: Whether there was privity between DeGraffenreid and Crosby, as the administrator of Bartlett C. Green.

The bill shows that Green, in his lifetime; transferred to DeGraffenreid all of his property except a small part — a part insufficient to pay the debts he owed to Rawson & Watson, the complainants in the bill — and that he did so with the view to prevent them from collecting their debts out of the property.

Now, this transaction was afraud on Rawson & Watson; and a fraud to which both Green and DeGraffenreid were parties. It was, therefore, a transaction which laid a foundation for a suit against both of them, at the instance of Raw-son and Watson. Therefore, if Green had been alive, and this suit had been against him and DeGraffenreid, the suit would have stood on a firm foundation.

There was then such a relation, (which, I suppose, we may call a relation of privity,) between Green and DeGraffenreid, by reason of this fraud, that they were liable to be sued jointly, in respect to it, by Rawson and Watson.

Crosby is but the administrator of Green, and therefore he takes the place of Green, and sustains the relations which Green sustained. Consequently, there must be such a relation between him and DeGraffenreid, that he and DeGraffenreid are liable to this suit, if Green and DeGraffenreid would have been liable to it, had Green been alive.

We think, then, that there was between DeGraffenreid and Crosby, as administrator of Green, such a privity as authorized a suit against them jointly; and therefore, we think that the first ground insisted on, in support of the demurrer, was not good.

Did a remedy at law exist ? The assets in the administrator Crosby’s hands were not sufficient to pay the debts. Therefore, as far as he was concerned, there did not exist a remedy at law.

It was argued by the counsel for the plaintiff in error, that an action for these debts lay against DeGraffenreid, as executor de son tort of Green.

This may admit of a doubt. There existed a regular administrator. 1 Wm. Ex’rs. 151, and note (w.)

But say that this is true, would the action prove an adequate remedy ?

The bill says that what was transferred to DeGraffenreid, by Green, was in the form of notes.

But notes are not subject to seizure and sale, under a judgment.

The action, therefore, if brought, could result in no more than a return of nulla bona.

We do not think that an adequate remedy at law existed, as against either DeGraffenried or Crosby; consequently, we think the second ground, in support of the demurrer insisted on, was not good.

So we affirm the judgment of the Court below.

Judgment affirmed.