Stapler v. Hardeman , 91 Ga. 127 ( 1893 )

Jackson, as administrator of Jackson, filed his petition to marshal the assets of the estate, and to set aside a deed held by Hardeman to the realty of the intestate, because, as alleged, based on a usurious contract. The bill alleged, in brief, that Jackson’s estate was insolvent, and that Hale and Stapler each held a valid mortgage on certain personalty of the intestate and prayed, among other things, that the deed to Hardeman be cancelled and that each of the creditors set up their respective debts with the priorities fixed by law. To this bill Hale and Stapler filed answers, setting up their respective mortgages as liens upon the property covered by them, and praying that their liens be protected as to the property so covered. In Hale’s answer he insisted that his two mortgages were a prior lien on the property covered by them, or the proceeds of such property as had been sold, if any; that if the estate was insolvent, the whole of the year’s support for the widow and children should not be charged to or paid out of the personal property, on which he had a lien, but should be taken and paid out of the whole general fund of-the estate. In Stapler’s answer he alleged that a portion of the live stock covered by his mortgage was in intestate’s possession when he died, and was taken possession of by the administrator and sold by him, bringing more than the amount due on the mortgage; that Stapler’s lien attached to the proceeds of the sale and was of prior dignity to any debts owing by deceased at the time of his death, and in the payment of the expenses of administration said fund should only be taxed with its pro rata share, in the event that the estate was insolvent, and there were not sufficient funds on which there-was no lien out of which to pay off and discharge such expenses; that if the estate is insolvent, the widow’s year’s support and other expenses of the administration should be paid out of the general fund of the estate, and not out of this personal property on which he claimed a lien. Each of them prayed that the equities existing between the creditors and the legal priorities of their claims might be inquired into and established by decree, etc.

When the case was heard by the jury, it was solely upon the question of the validity of Hardeman’s deed, questions being formulated to be answered by the jury, pertaining to said deed only; and such questions were answered, no reference being made by the verdict to any debt nor the priority of any debt. After the verdict on the issue mentioned, creditors having neglected to take verdicts on their respective claims, upon agreement of all parties a decree was rendered. The parties to the hill admitted that the claims of the respective creditors, among others those of Stapler and Hale, were as set up in the bill and answers, and that they were entitled to such liens, if any, as the law authorized under the facts; it being admitted that the property covered by their mortgages had been sold and the proceeds appropriated to the year’s support of the widow and expenses of administration. Without any further verdict and without any agreement in writing, the judge presiding entered a decree in which Hale’s and Stapler’s claims were each set up with the dignity of notes only, a*nd Hardeman’s deed was decreed void, the decree failing to state that he had a debt of any sort. Subsequently, the decree was amended so as to set up the debt of Hardeman with the dignity of a promissory note, the same having been omitted, by mistake when the decree was rendered. The case was tried at the February term, 1888. At the February term, 1891, Hale and Stapler made a motion to amend the decree as to their respective claims, so as to give them liens on the property covered by their mortgages or the proceeds thereof. The administrator raised no objection, but Hardeman objected that it was too late to amend the decree, and that the same could not be done in the manner attempted, the question as to the liens having been passed upon at the time the decree was entered. The motion was overruled, and Hale and Stapler excepted, alleging that the court erred in holding that the decree could not be amended in the manner attempted and that the original decree should have been excepted to; and in passing the order disallowing the amendment asked for..

Thomas & Strickland, for plaintiffs in error. J. B. Estes, A. S. Erwin, A. J. Cobb, Barrow & Thomas and W. I. Pike, contra.