Roddy v. Cox , 29 Ga. 298 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion.

We concur with the Court below, that there is no equity in this bill, but our view of the rights of the parties is very ■different from that expressed by Judge Cabaniss. Whether the estate given by the will of Josee Dunn, to his son David, was a fee simple, or only life estate, with remainder to his heirs at law, and in the latter case whether the heirs at law are only the widow, or are the widow together with the rest of kin, are questions which were strenuously argued before us, but which both sides at last besought us not to decide, if a decision of them could be avoided.

We think such a decision not at ail necessary to a disposition of the case, and will therefore refrain according to the wishes expressed to us, from giving our views upon these points indicated; but will content ourselves with stating the reasons why we think that,- upon any one of the views suggested, this bill was unnecessary, and therefore without equity.

If the estate conveyed, was a life estate to David, with» remainder to his heirs at law, and the widow is sole heir, then the bill fails for the'reason assigned by Judge Cabaniss, that is to say the complainants simply have no interest in the matter. But suppose the heirs at law to be the widow, together with the complainants, who are the next of kin. This was decidedly the favorite hypothesis of the complainants. If it be the true one what need have they for the bill? — they, who are defendants in the trover case, and C’ox, who is plaintiff, are joint tenants of the negro. What need has one joint tenant for an injunction to restrain his co-tenant from recovering the property from him ? His defence at law is good, and he needs no more. But it maybe suggested that although, as a general rule, one joint tenant can not maintain trover against his co-tenant; yet he may do so when, as in this case, the tenant in possession sets up his own adverse claim to the whole, to the exclusion of his co-tenant. This also is true; but in such a case the recovery is founded on a partition. Neither joint tenant is entitled to recover from the other, under any circumstances, the entire property jointly owned, but only the value of his own interest in it. Such a case results in a partition of the joint property — the whole property which is held by the same joint title. They may, if they choose, remain joint tenants, but either has the right to a severance. This is a severance of the whole, and not of a part. Now the bill alleges in this case, that Cox, the plaintiff in trover, has in his possession, to the exclusion of his joint tenants, much more than his share of the whole joint property. If so, he is not entitled to recover his interest in the particular negro, Troup, whom Dr. Roddy happens to have in his possession. Cox cannot insist on a severance as to Troup, without allowing it as to all the rest. Upon the supposition that the property is to remain joint, one joint tenant cannot recover from another al all; his recovery must be based upon a severance, and then the measure of his recovery would be the value of his interest in the particular property sued for, after an apportionment of the whole. But an apportionment in this case defeats the right of recovery at all, and there was no need of an injunction. True, the bill does more than ask an injunction; it seeks a full apportionment, and it is contended that the bill ought to have been retained for this purpose. It cannot be retained for that purpose, because of the want of jurisdiction over Cox, who, as shown by the bill, resides out of the State, and was not caught in the State for service. This part of the bill rests upon the other, and of course falls with it. Without the injunction as a support for the jurisdiction, it becomes simply a suit in this State against a resident of some other State, who does not appear ever to have put his foot inside of the limits of Georgia. As it was strongly intimated in the argument that the rights of these parties would come before us again, upon the points which we do not decide, I will not pass from this part of the subject, without indicating'a point on which we desire to have authority produced, if any exists; that point is, who are the heirs of David Dunn (in case David did not take a fee) meant by the will of Josee Dunn ? We do not feel the least difficulty in holding that the will (Josee Dunn having died domiciled in this State) must be construed according to the laws of Georgia; but we cannot see that this necessarily leads to the conclusion that the widow is the only heir (there being no children). The question with this assumption then, becomes this; who are the heirs of David Dunn’s personal property according to the laws of Georgia, he having died domiciled in the State of Jilabama? The heir is he on whom the law casts the inheritance. Different laws cast it on different persons, but still, he on whom it is cast, is the heir. Then on whom would, the laws of Georgia cast the personal property (situate in Georgia) of a person dicing intestate, domiciled in Alabama ? The question is not, on whom the laws of Georgia would cast the personal property of David Dunn, if he had died domiciled in Georgia; that is a supposititious case. The case before us is, when he died domiciled in Alabama. This exhausts two out of the three possible cases; the other is that of a fee in David. In that case the property must pass through the hands of David’s administrator or executor, for payment of debts first, and then for distribution according to law, or the will, if there be one. Of course the heirs at law could not maintain trover before this has been done, and there is no need of an injunction to restrain Cox in that view; but it is suggested that this has been done, and that the decree in Alabama is an adjudication that the property belongs for distribution to the heirs at law; that whatever estate may have been created by the will of Josee Dunn, it is now res adjudicata. This may be so to the extent of binding those creditors who were parties to decree, or it may be so without any qualification whatever; but then if so, it only amounts to this — that the property belongs to the heirs at law, (if more than one) as joint tenants. This latter case we have already shown, needs no aid from an injunction; so that in any of the three views taken of the interests of these parties, we are satisfied there was no use for an injunction, and no jurisdiction for an apportionment. The plaintiff in trover can submit to an apportionment if he chooses, but there is no power here to enforce it against him.

Judgment affirmed.