O.C.G.A. § 9-8-2 (2019)

Annotations

JUDICIAL DECISIONS Jurisdiction over marital property in suit for divorce. - Since a state court hearing a suit for divorce and division of property asserts quasi in rem jurisdiction over the marital property, where the court’s order providing for the sale of the property and division of the proceeds had not yet been complied with, that court still had and continued to exercise quasi in rem jurisdiction over the property, and the federal district court therefore had no power to appoint a receiver to effectuate the sale of the property as required by the divorce decree. Cavalino v. Cavalino, 601 F. Supp. 74, 1984 U.S. Dist. LEXIS 21168 (N.D. Ga. 1984). This section was applied where insolvent husband occupied joint property to exclusion of his wife after a divorce. Baggs v. Baggs, 55 Ga. 590, 1876 Ga. LEXIS 424 (1876) (see O.C.G.A. § 98-2). In suit between cotenants of real estate, receiver may be appointed where the plaintiff’s title or right is probable and a receivership is necessary for the preservation of the subject matter of the suit or for the protection of the interests of the parties therein pending the litigation. Waycross Military Ass’n v. Hiers, 209 Ga. 812, 76 S.E.2d 486, 1953 Ga. LEXIS 419 (1953). Probable loss or injury must be shown. - Even a dispute among cotenants will not constitute ground for a receivership in this state unless there is the element of probable loss or injury to the complainants. Astin v. Carden, 194 Ga. 758, 22 S.E.2d 481, 1942 Ga. LEXIS 650 (1942); Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755, 1958 Ga. LEXIS 271 (1958). Receiver appointed where insolvent cotenant holds to exclusion of others. - A receiver may be appointed to take possession of undivided valuable property held by an insolvent tenant in common to the exclusion of the other cotenants. Williams v. Jenkins, 11 Ga. 595, 1852 Ga. LEXIS 68 (1852).

A court of equity has jurisdiction to appoint a receiver at the instance of one tenant in common against the cotenants, who are in possession of undivided valuable property, receiving the whole of the rents and profits, and excluding their companion from the receipt of any portion thereof, when such cotenants are insolvent. Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755, 1958 Ga. LEXIS 271 (1958). Receivership improper where cotenant solvent and no need shown. - Where, on the trial of an equitable petition for the partition of real estate and accounting between tenants in common, the evidence shows that the defendant against whom the charges of mismanagement were made is solvent, and no necessity for a receivership is proved, it is error to appoint receivers to take possession of and to hold and manage the property in question pending final disposition of the case. Liddell v. Johnson, 213 Ga. 752, 101 S.E.2d 755, 1958 Ga. LEXIS 271 (1958). Partnership assets. - A receiver may be appointed to take charge of assets of a partnership after dissolution where the partners disagreed as to values of property, and mutual charges of mismanagement were alleged. Terrell v. Goddard, 18 Ga. 664, 1855 Ga. LEXIS 255 (1855); Boyce v. Burchard, 21 Ga. 74, 1857 Ga. LEXIS 8 (1857); Bennett v. Smith, 108 Ga. 466, 34 S.E. 156, 1899 Ga. LEXIS 275 (1899); Pritchett v. Kennedy, 140 Ga. 248, 78 S.E. 902, 1913 Ga. LEXIS 94 (1913). Where the surviving partner continued the business beyond the time allowed by law, the partner’s possession will not be disturbed if the partner is solvent and can comply with any decree of the deceased partner’s estate. Huggins v. Huggins, 117 Ga. 151, 43 S.E. 759, 1903 Ga. LEXIS 181 (1903). Appointment of receiver may be authorized by refusal of trustee to perform trust. McDougald v. Dougherty, 11 Ga. 570, 1852 Ga. LEXIS 67 (1852). Appointment of receiver if property is in danger of being wasted or

misapplied to the detriment of creditors. Jones v. Dougherty, 10 Ga. 273, 1851 Ga. LEXIS 101 (1851). Appointment of receiver if purchaser has innocently placed valuable improvements on trust property. Malone v. Buice, 60 Ga. 152, 1878 Ga. LEXIS 406 (1878). Receiver appointed where trustee dies or resigns. - A receiver may be appointed to protect property after death or resignation of a trustee. J.G. Bailie & Bro. v. McWhorter, 56 Ga. 183, 1876 Ga. LEXIS 235 (1876); Robert v. Tift, 60 Ga. 566, 1878 Ga. LEXIS 540 (1878); McFerran, Shallcross & Co. v. Davis, 70 Ga. 661, 1883 Ga. LEXIS 393 (1883). When receiver appointed pending action to remove trustee. - A receiver will not be appointed pending an action to remove a testamentary trustee, unless it is feared that property will not be forth-

coming to answer the decree. Poythress v. Poythress, 16 Ga. 406, 1854 Ga. LEXIS 198 (1854). Sales by trustee without consent of beneficiary. - Where the court granted a trustee the power to sell property, and the beneficiaries bring a bill to set aside the sale because they had not consented thereto, if sale has been rescinded, the court may appoint the trustee as receiver to sell the property. Burwell v. Farmers & Merchants Bank, 119 Ga. 633, 46 S.E. 885, 1904 Ga. LEXIS 315 (1904). Foreclosure of trust deed. - Where property mortgaged by a trust deed is subject to an impending tax sale, a receiver may be appointed at the instance of a bondholder where the trustee refuses to foreclose. Etna Steel & Iron Co. v. Hamilton, 137 Ga. 232, 73 S.E. 8, 1911 Ga. LEXIS 368 (1911).

RESEARCH REFERENCES Am. Jur. 2d. 65 Am. Jur. 2d, Receivers, §§ 11 et seq., 23 et seq. C.J.S. 75 C.J.S., Receivers, §§ 24 et seq., 29, 30. ALR. Appointment of receiver after decree or judgment, 111 A.L.R. 500.

Right to appointment of receiver in action between persons owning or claiming to own undivided or successive interests in property or fund, 127 A.L.R. 1228.