Appling County GaArchives Court.....Nail, Et Al June 1850
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Kristi Zoebelein kristizoebelein@thompsontractor.com October 22, 2009, 4:57 pm

Source: Reports Of Cases In Law & Equity - Supreme Court Of Georgia
Written: June 1850

Nail vs. Mobley and Nail

g 278 No. 53. -- Elizabeth Nail, plaintiff in error, vs. Jesse Mobley, 
administrator, and Morris Nail, defendants.

1.  When a complainant, in a bill, claims one general right to property in the 
possession of two defendants, notwithstanding that right may be derived from 
distinct sources, a demurrer for multifariousness will be overruled.

In Equity, in Appling Superior Court.  Decision on demurrer by Judge Hansell, 
June Term, 1850.

Elizabeth Nail, by her bill, filed in Appling Superior Court, charged, that 
her father, Reuben Nail, in the year 1822, executed and delivered to her a 
deed of gift to certain slaves named, which deed she believed had been 
destroyed by Morris Nail or Jesse Mobley; that she took possession of the 
negroes, occasionally permitting them to go into the possession of her father; 
that in 1840, her father executed another deed of gift, conveying to her a 
number of negroes and several tracts of land, a copy of which deed was 
attached to the bill; that she took possession of the land and negroes, and 
was in the actual or constructive possession of them at the time of the death 
of her father, in April, 1846; that complainant and Morris Nail were the only 
distributees of Reuben Nail;  that a few months before his death, Morris Nail 
and complainant had a dispute about this property, and it was agreed between 
them, that after the death of said Reuben, there should be an equitable 
division of the property, according to certain conditions specified in a 
written agreement between them; that in pursuance of this agreement, they paid 
up the debts of said Reuben after his death; that in 1847, Jesse Mobley 
obtained letters of administration upon the estate of Reuben Nail, and in 
virtue thereof, took possession of all the negroes and lands specified, except 
those in the possession of Morris Nail -- said Morris absolutely refusing to 
comply with his agreement for an equitable division.  The bill chargegd 
collusion and fraud between Morris Nail and the administrator, to deprive 
complainant of her property; and also that they were committing great waste in 
cutting and converting to their own use the timber upon the lands specified; 
that they obtained possession of her property, by falsely representing that if 
she would permit the said Jesse to take possession of the same, they would 
make the equitable division before referred to ; but instead of so doing, they 
were jointly converting the same to their own use.

But "should the Court decide against her title under the deed," the bill then 
alleged that she was well entitled to one half of the estate of Reuben Nail.  
The bill specified the property , he died possessed of, and charged the same 
to be in possession of the administrator, except a portion which he 
fraudulently permitted the said Morris Nail to keep possession of -- refusing 
to reduce the same to possession.  In this aspect, the bill charged a joint 
waste and conversion of the property of the estate by the administrator and 
Morris Nail.

The bill charged the inability of complainant to prove the facts charged, 
without resorting to the conscience of the defendant.

The prayer of the bill was first, that the defendant, Mobley, might be decreed 
to deliver up the property conveyed in the deeds to complainant, and might 
account with her for the hire and rent, and also for the timber converted to 
his own use; OR, that Morris Nail and the administrator might be decreed to 
account with each other and compelled to pay to complainant one half of the 
rents and profits of the estate, and that in the settlement, Morris Nail 
should account for all advancements made him, and that one half of the estate, 
real and personal, should be paid over and delivered to complainant; OR for 
general relief.

On demurrer, the Court dismissed this bill for multifariousness in joining 
several and distinct matters against the same party, and also in joining 
several and distinct matters against several defendants.

This decision was excepted to, and is now assigned as error.

W.B. Gaulden, for plaintiff in error.; C.B. Cole, for defendant.

By the Court. -- Warner, J. delivering the opinion.

1.  The complaintant in this bill alleges that she has a title to certain 
property in the hands of the defendants, consisting of lands and negroes, by 
virtue of a deed of conveyance, executed to her by her father, Reuben Nail, 
who has departed this life intestate, and also claims one half of the estate 
of her deceased father, in the hands of the defendants, who, she alleges, have 
fraudulently combined together to deprive her of any share of the property to 
which she is entitled under the deed of conveyance or as the distributee of 
her deceased father, Reuben Nail, and for "that purpose, Jesse Mobley took out 
letters of administration of the estate of her father, and is not colluding 
with her brother, Morris Nail, to defeat her in the enjoyment of any portion 
of the property, which it is alleged is in the possession fo the defendants, 
and which they are and have been appropriating to their town use.  

Additional Comments:
Elizabeth Nail, Jesse Mobley, Morris Nail, Reuben Nail

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