Opinion
15342.
MARCH 4, 1946.
Injunction, etc. Before Judge Graham. Dodge Superior Court. September 5, 1945.
J. K. Whaley and A. R. Ross, for plaintiffs in error.
Preston Rawlins and W. S. Mann, contra.
Where in a suit against an administratrix and another, for the appointment of a receiver and other equitable relief, it appeared from the pleadings and evidence that the plaintiffs may obtain adequate protection and redress in the court of ordinary as to each complaint against the administratrix in reference to the estate of the intestate, the plaintiffs did not present a proper case for the appointment of a receiver for such estate, or for injunction.
No. 15342. MARCH 4, 1946.
The plaintiffs in error complain of an order appointing a receiver, and granting an interlocutory injunction. Mrs. Sallie Yawn died intestate on September 3, 1944, leaving eight children, and Mrs. Effie Yawn Conner, a daughter, was duly appointed as her administratrix. While the estate was being administered a controversy arose between the administratrix and five of her sisters and brothers. The present suit resulted. The petition was presented to the judge of the Superior Court of Dodge County, and, after sanction and grant of a restraining order on July 18, 1945, was filed on July 19th. The plaintiffs were Mrs. Loutrell Yawn Stevenson, C. C. Yawn, Norman Yawn, Mrs. Grace Yawn Stanley, and Mrs. Mable Yawn Shepherd. The defendants were Mrs. Effie Yawn Conner, who was sued as administratrix, and her father-in-law, Hartley C. Conner. The plaintiffs, together with W. L. Yawn, a patient in the State hospital for the insane in Milledgeville, and P. L. Yawn, his guardian, and the defendant, Mrs. Effie Yawn Conner, are all of the children and heirs at law of Mrs. Sallie Yawn, deceased. The petition alleged substantially the following:
The property of the estate consisted of two described tracts of land in Telfair County containing 50 5/8 acres and 164.8 acres respectively, a 1942 Chevrolet automobile, and the sum of $7000 in cash, in addition to other personal property. Immediately after the death of Mrs. Sallie Yawn, and pending application for permanent administration, Mrs. Effie Yawn Conner admitted that she had $7000 in cash of the deceased and would account for the same as administratrix, and with that assurance the plaintiffs made no contest of her application for permanent administration. After being appointed as permanent administratrix, Mrs. Conner denied that her mother had any cash at the time of her death, and failed to list the same in the inventory of the assets of the estate. Mrs. Conner has possession of the money and intends to appropriate it to her own use. Prior to the death of Mrs. Sallie Yawn, she was the guardian of her son W. L. Yawn, and in pursuance of an order of court therefor she sold described lands of the incompetent, and the same were bought by Mrs. Conner for $3000. Immediately after the sale, Mrs. Conner sold the sawmill timber on the lands for $800 and paid the proceeds thereof to Mrs. Sallie Yawn, who thereupon extended credit for the balance of the purchase-price payable at the rate of $1000 per year. Before any other installment became due, Mrs. Sallie Yawn died, and Mrs. Conner now claims that she owes the estate nothing and that she had paid the purchase-price during the lifetime of Mrs. Sallie Yawn. After being appointed as administratrix, Mrs. Conner procured an order for the sale of the personal property. The plaintiffs and others who attended the sale were interested in the purchase of the automobile, and would have bid thereon, as much as $1000, of which fact Mrs. Conner was well aware, but the automobile was not offered at public sale in accordance with the advertisement. While the administratrix claimed that the automobile was sold to P. L. Yawn at public sale for the sum of $500, the claim was false; and the automobile was delivered by Mrs. Conner to P. L. Yawn by and through collusion between them, to the damage and loss of the estate and the plaintiffs' interest therein. The administratrix advertised the lands for sale before the courthouse door of Dodge County, on the first Tuesday in July, 1945. The 50 5/8-acre tract was first offered for sale, and the bids were spirited. Mrs. Grace Yawn Stanley, one of the petitioners, finally bid $900 and Lamar Conner bid $925, and the same was knocked off to him. The home place, including the dwelling of the deceased, being the 164.8-acre tract, was then offered, and after spirited bidding E. B. Shepherd bid $8400 therefor, and Lamar Conner bid $8500, and thereupon the lands were knocked off to him. Lamar Conner is the brother-in-law of the administratrix. After the sale was over, the administratrix left the place of sale and left the City of Eastman. The plaintiffs remained at the courthouse until the crowd who had been interested in the purchase of the lands had dispersed. There was no other public offer made for the property on the day of sale or at any other time. On July 11, 1945, Mrs. Conner filed for record in the office of the clerk of the Superior Court of Telfair County her deed as administratrix purporting to convey all of the lands to Hartley C. Conner, at and for a consideration of $5000, reciting that the same was sold to Hartley at public sale on the first Tuesday in July, 1945. While the deed purports to have been executed on July 3, 1945, the deed was not executed until July 11, and the property was not sold to Hartley C. Conner at public sale. The 50 5/8 acres are worth and will sell for $900, the amount bid by Mrs. Grace Yawn Stanley, and the home place consisting of 164.8 acres will sell for $8400, the amount bid by E. B. Shepherd. Since the alleged sale, Mrs. Conner has taken possession of the lands, claiming them to be her own, and is seeking to appropriate the same to her own use. If the administratrix should claim that Lamar Conner failed to pay the purchase-price for the lands and that she resold the same at his expense, Lamar Conner is insolvent and a judgment against him would be of no value, and the difference in the value of the lands and the amount bid thereon by persons able and willing to pay therefor would be a complete loss to the estate and to the plaintiffs as heirs at law. The administratrix knew at the time of knocking the property off to Lamar Conner that he was insolvent, but she gave no warning that, if the purchase-price was not paid, a resale would be had. On the contrary, she left the place of sale and caused those interested in the purchase of the property to disperse. If she made a second sale on the first Tuesday in July, 1945, it was late in the afternoon, secretly made in order that she might procure the property at an unfair price, to the loss and damage of the estate. The administratrix deliberately and through a conspiracy with Lamar Conner pretended to make a sale of the property to him for the purpose of causing the plaintiffs and others interested in the purchase thereof to disperse, in order that she might have the same bought in for her at an unreasonably low price. The defendants, unless enjoined, will transfer the property to an innocent purchaser, and in that event the plaintiffs would have no remedy. The administratrix is greatly and seriously mismanaging the estate and seeking by secret and fraudulent means to acquire most of said estate for her own use and benefit, to the damage of the plaintiffs and their interests. Her interest is opposed to and in conflict with the interest of the estate and of the plaintiffs as heirs at law thereof, and she should be removed from her trust as administratrix. Unless a receiver is appointed to take charge of the lands, the other property of the estate, and the funds, and to administer the same under the direction of the court, and to make a sale of the lands under orders of court, and fairly, the creditors, plaintiffs, and other heirs of the estate will suffer irreparable loss and damage. The pretended sale of the lands was fraudulent, and the deed should be decreed void and the defendants required to deliver the same into court for cancellation. The administratrix should be required to account to the receiver for the cash in the amount of $7000 and for the value of the automobile in the amount of $1000. After the cancellation of the deed made by the administratrix to Hartley C. Conner, the lands should be sold by the receiver under proper orders of court and in a manner by which the same will bring its fair market value. The plaintiffs have no adequate remedy at law.
The petition contained the following prayers: That the deed and purported sale be decreed to be void, and the defendants required to deliver the deed into court and that it be cancelled; that the defendants be enjoined from selling, conveying, or otherwise incumbering the lands; that Mrs. Effie Yawn Conner be removed as administratrix of the estate, and that a temporary receiver be appointed to take possession of the lands and the other property of the estate and of the funds of the estate, and that on a hearing hereof a permanent receiver be appointed to handle, administer, and wind up the estate under orders of the court; that the receiver be required to demand, sue, and recover of the administratrix for all of the funds of the estate that went into her hands, including the $7000, and to recover of her the value of the automobile; that the defendants be enjoined from interfering in any manner whatsoever with the receiver, in taking possession of, managing, handling, and disposing of all the funds and all the property of the estate; that the plaintiffs have such other and further relief as to the court may seem proper; and that process issue requiring the defendants to appear at the next term of court.
The administratrix filed an answer, which denied material allegations of the petition, and averred affirmatively that she had complied with the law with respect to all of the sales and other matters in question, and that she was lawfully and fairly administering the estate.
A separate answer filed by Hartley C. Conner denied material allegations of the petition, and averred that the real estate was bid in under the circumstances set forth by the administratrix.
After hearing evidence that tended to prove the contentions of the respective parties as set forth in their pleadings, the trial court appointed a temporary receiver to take possession of the real estate and the $5000 paid therefor by the defendant Hartley C. Conner, which $5000 the administratrix was directed to deliver to the temporary receiver. It was further ordered that the defendants be enjoined from interfering with the receiver in any manner whatsoever in taking possession of the cash and the property, and in holding and preserving the same in accordance with the order of the court. The defendants were also temporarily enjoined pending the further order of the court as prayed in the petition. The defendants excepted.
The principal question is whether the plaintiffs' allegations and the evidence in support of them were sufficient to authorize the court to appoint a receiver for the real estate alleged to have been illegally conveyed by the administratrix to her father-in-law, and for the purchase-money received, in order that such property and money might be preserved and protected pending the litigation; but there is also the question as to whether it was error to enjoin a resale of the property by the defendants in the meantime.
"Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." Code, § 37-403. "The power of appointing receivers should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to." Section 55-303.
The estate was under the jurisdiction of the ordinary, as to whose authority the Code, § 113-1229, provides as follows: "Whenever the ordinary knows, or is informed by any person having any interest in the estate, that the administrator wastes or in any manner mismanages the estate, or that he or his sureties are likely to become insolvent, or that he refuses or fails to make returns as required by law, or that for any reason he is unfit for the trust reposed in him, he shall cite such administrator to answer to such charge at some regular term of the court, and upon the hearing of his return the ordinary may, in his discretion, revoke the letters of administration, or require additional security, or pass such other order as in his judgment is expedient under the circumstances of each case." The condition of an administrator's bond is "the faithful discharge of his duty as such administrator, as required by law." Section 113-1217.
It may or may not be that the petition alleged a cause of action for cancellation. Black v. Elrod, 146 Ga. 692 ( 92 S.E. 62); Sikes v. Sikes, 153 Ga. 725 (1) ( 113 S.E. 416, 24 A.L.R. 1324). But as to this we now express no opinion, since the assignments of error do not raise that question.
In West v. Mercer, 130 Ga. 357 ( 60 S.E. 859), a case quite similar on its facts, this court said: "The appointment of a receiver determines no right as between the parties, nor does it affect the title in any way. The purpose of a receivership is to preserve the property contested for pendente lite until the final disposal of all questions, legal or equitable. . . No matter how strong the apparent equity of the complainant may be, if there is no necessity for a receivership, the courts will not change the status until final decree."
In Darby v. Green, 174 Ga. 146 (4) ( 162 S.E. 493), it was said: "Any person interested in the estate may seek the intervention of equity when there is danger of loss or injury to his interests, in order to procure the direction of the court of equity in the conduct of the administration then pending in the court of ordinary, but can not, under § 4596 [Code of 1933, § 37-403], seek the intervention of equity merely as a means of wrenching the administration from the jurisdiction of the court of ordinary."
The administratrix is under bond; nor is there any suggestion that her codefendant, grantee in the alleged fraudulent deed, is not abundantly solvent, if solvency or insolvency on his part might be considered material. Moreover, in so far as a resale of the property by him is concerned, the plaintiffs would have an adequate remedy by filing a proper notice of lis pendens under the act of February 21, 1939 (Ga. L. 1939, p. 345). Wright v. Edmondson, 189 Ga. 310 (2) ( 5 S.E.2d 769).
The plaintiffs are not seeking to recover this land in order that it may be divided in kind among the heirs. See Matson v. Crowe, 193 Ga. 578 ( 19 S.E.2d 288). As a matter of fact, according to their petition, they want it sold; but they say that the administratrix has been guilty of fraud and collusion with respect to its sale, and that it should be reclaimed and sold by a receiver. So the difference is merely one of damage, resulting from an alleged breach of duty by the administratrix, and such duty, of course, would be within the bond. Trust Company of Georgia v. Smith, 54 Ga. App. 518 (2) ( 188 S.E. 469).
In view of the foregoing statutes, and especially those relating to bond, and jurisdiction of the ordinary, it seems that the plaintiffs could not possibly be in such danger of loss or injury as to require either a receivership or an injunction for the protection of their interests, pending the litigation.
We are therefore obliged to differ with the learned trial judge upon these questions.
The present case differs on its facts from McCord v. Walton, 192 Ga. 279 ( 14 S.E.2d 723). In that case the defendant, an executor, was not required by the will to give a bond and the petition alleged that he was insolvent and not under bond. Compare Jones v. Proctor, 195 Ga. 607 ( 24 S.E.2d 779). Nor do the facts of the instant case resemble those in Spooner v. Bank of Donalsonville, 159 Ga. 295 ( 125 S.E. 456), where the estate was represented by co-executors, and, besides other complications, the executors themselves were "crossed-up" and one of them had brought suits against the other. See generally, in this connection, Beecher v. Carter, 189 Ga. 234 (5) ( 5 S.E.2d 648); Astin v. Garden, 194 Ga. 758 (2) ( 22 S.E.2d 481); Jones v. Wilson, 195 Ga. 310 ( 24 S.E.2d 34); Furr v. Jordan, 196 Ga. 862 ( 27 S.E.2d 861).
From what has been said, it was error to appoint a receiver and grant an injunction.
Judgment reversed. All the Justices concur.