National Bank v. Ellis

Peb Curiam.

1. Where a receiver appointed for an insolvent bank brought a petition against various parties, including creditors and the holders of certain liens upon property of the bank, and prayed, among other things, that the holders of the liens be made parties defendant, that the status of these and other liens be ascertained and the amount due upon them determined; and where two of the alleged lienholders, non-residents of the county in which the petition was brought, who were the grantees in deeds executed to secure debts due from the insolvent" bank, filed a plea to the jurisdiction of the court, raising, among other defenses, the contention that they could not be made parties to the petition, inasmuch as they were the holders of the title to the property covered by their deeds, and that the court had no jurisdiction of them in the proceedings instituted, it was error to overrule this plea, it not appearing that the debts due to the grantees in the security deeds had ever been paid, or that tender of the amount of the debts had ever been made, or that there was any contest as to the genuineness or amount of the debts to secure which the deeds had been executed. And this is true even though the petition filed by the receiver alleged that there were certain taxes to be paid, and prayed that the plaintiffs in error and other creditors of the bank be brought in, so that the amount of their debts could be fixed, the property sold free from the liens, and the valid liens be allowed to take precedence to the extent of said liens. Civil Code, §-6038; Shumate v. McLendon, 120 Ga. 396 ( 48 S. E. 10 ; First National Bank of Commerce v. McFarlin, 146 Ga. 717 ( 92 S. E. 69 ).

2. As the foregoing ruling controls the case, it is unnecessary to consider the other questions raised.

Judgment reversed.

All the Justices concur.

Equitable petition. Before Judge Mathews. Appling superior court. August 1, 1917. Garrard & Gazan, Edward 8. Elliott, and George II. Richter, for plaintiffs in error. Clifford W'alker, attorney-general, Thomas & Walker, and Padgett & Watson, contra.