Bailey v. Ross

71 Ga. 771

• Court: Supreme Court of Georgia
• Decided: November 6, 1883
• Status: Published

Opinion

Jackson, Chief Justice.

1. When this case was before this court before, on the application for an injunction, reported in 68 Ga., 735, it was ruled that there was no equity in the bill in respect to the effort to stop the sale of the land, the ordinary having regularly, in his court, granted an order therefor, and no ground of equitable interference with the judgment of that court being alleged in the bill.

2. It was also then decided that the existence of the cross-bill filed by John T. and Edgar C. Bailey threw no such cloud over the title to the land as to authorize the interposition of a court of equity, or to authorize a claim by complainant for his commissions as executor of John Bailey’s estate, especially as the court then say, when “ it is judicially known to this court * * * that a decision of this court at this term in this case disposes of that bill.” See last paragraph of the opinion on page 738, and judgment on the' cross-bill in 68 Ga., p. 823.

3. So, also, it was ruled then that the fact that the clerk of the superior court was the administrator, and had given no bond as such, was no ground for equitable interference.

4. This leaves the naked question, is complainant entitled to proceed for his commissions, as executor of the estate of John Bailey, out of the estate of James B. Bailey, one of his heirs, on the grounds set out in this bill ?

We do not think that he can. The claim for those commissions is based on services rendered in 1857. It is a stale demand, and equity will not help it for that reason.

It is an effort to make one estate pay commissions due by another, and there is neither law nor equity in that. It seeks to attach the commissions to the land of this estate, because it was the portion which fell to James B. Bailey out of John Bailey’s estate on division, by agreement of parties, wherein the complainant gave up those commissions, provided there was no litigation about it; and it rests solely upon the cross-bill filed by two of the descendants of one of those who divided the estate of John Bailey and got his share; which cross-bill, it will be seen, in the cases in 68 Ga., pp. 735 and 823, has been dismissed as without equity.

The result must be that the court below was right to dismiss the bill on the ground that the claim was a stale demand, and that there is no equity in the claim.

Judgment affirmed.