Citation Numbers: 63 Ga. 341
Judges: Bleckley
Filed Date: 9/15/1879
Status: Precedential
Modified Date: 1/12/2023
Two persons administered jointly upon an estate, and gave an administration bond with security. Both administrators died, and their estates were severally administered upon by different individuals. The bond was put in suit in tlie superior court, in the name of the ordinary, for the use of certaiu beneficiaries, one of whom was an adult and the rest minors. The suit was against the two administrators of tlie two principal obligors, and against the surety.
The bill is in the nature of a bill for the specific performance of a contract. It does not seek to open the consent verdict and judgment on the ground of a mistake of law as to the power of the guardian ad litem to bind his wards by the agreement, or on any other ground. The agreement was not executed by all the parties to the common law action on either side. Only the guardian ad litem, and one of the three defendants executed it. It is a separate covenant between these parties, and for that reason any breach of it is more appropriately treated as a separate cause of action between them, than as a cause for equitable interference with the collection of the judgment. To qualify and, limit a judgment in favor of several plaintiffs against several defendants by a contemporaneous agreement not common to them all, the terms of the agreement ought to be incorporated in the judgment, and not left extrinsic to it. There is also, to say the least, grave doubt whether the guardian ad litem had any power to bind his wards to bid for property when sold under the execution. Possibly, the effect of his covenant was only to bind himself personally ;; and if so, it could have no direct influence on the right of the plaintiffs in the execution to levy and sell according to the ordinary course of law. It is clear that if the wards are not bound, there ought to be no injunction. If, on the contrary, they are bound, it does not ajapear from the bill that a breach of the agreement would result in irreparable damage. No insolvency is charged; and,moreover, it may happen that the store-house will bring at the sale even more than the amount specified in the agreement. If it should bring less, and if the agreement is operative directly upon the judgment and execution, the right to a credit on the execution for the stipulated sum would not be lost, and the enforcement of that right after the sale would be enough for the complainant’s protection.
Judgment affirmed.