Fleming v. Collins

27 Ga. 494

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin J.

delivering the opinion.

Ought the injunction in this case to have been retained ? Clearly not, as to the right of the plaintiff to recover one-half of the land sued for.

John A. Meigs, the intestate of Porter Fleming, had hut two heirs; one an idiot sister, who, before and at the time of his death, and ever since, has been non compos mentis, and the inmate of an Asylum. How is it as to the other half? The only other heir was o.feme covert, who as the answer alleges, was abandoned by her husband, when the right to this property accrued, and has been ever since. Should a Court of Equity restrain the administrator from recovering her share of this land, when she could not sue for it herself, and her husband would not? Is not her equity as good, if not better than the defendant’s, who comes into a Court of Equity and asks its aid to protect his statutory title, purchasing as he did, from one, who had no title to the land, and made_no pretence even, that he was the true owner ?

Should this moiety of land he recovered by the administrator, it will not be for the benefit of the husband, who had a right to sue, hut it will be settled upon the deserted wife, who, being under coverture, could not move in the matter.

Situated as this woman is, it seems to us, that hex’s is the better equity of the two; and we so decide.

Judgment reversed.