Title 23

A petition for an accounting need not offer to pay a balance if found against the complainant. History. — Orig. Code 1863, § 3069; Code 1868, § 3081; Code 1873, § 3136; Code 1882, § 3136; Civil Code 1895, § 3995; Civil Code 1910, § 4592; Code 1933, § 37-307.

(a) Assets are either legal or equitable. Legal assets are such as may be reached by the ordinary process of law. Equitable assets are such as can be reached only through the intervention of equity. (b) Legal assets, when properly before the court, shall be distributed according …

Equity will not interfere with the regular administration of estates, except upon: (1) Application of the representative: (A) For construction and direction; or (B) For marshaling the assets; or (2) Application of any person interested in the estate where there is danger of loss …

In cases of difficulty in construing wills, in distributing estates, in ascertaining the persons entitled, or in determining under what law property should be divided, the representative may ask the direction of the court, but not on imaginary difficulties or from excessive cauti…

In all cases where legal difficulties arise as to the distribution of assets in payment of debts or where from any circumstances the ordinary process of law would interfere with the due administration of an estate, without fault on the part of the representative of the estate, a …

In marshaling assets, the court shall look to the equities of the creditors and, where cases arise for election, shall compel the parties to elect. History. — Orig. Code 1863, § 3078; Code 1868, § 3090; Code 1873, § 3147; Code 1882, § 3147; Civil Code 1895, § 4002; Civil Code 191…

Creditors’ petitions may be filed at the instance of any creditor, the privilege being extended to all to appear and become parties within a reasonable time. History. — Orig. Code 1863, § 3079; Code 1868, § 3091; Code 1873, § 3148; Code 1882, § 3148; Civil Code 1895, § 4003; Civil…

Equitable assets may be reached by a creditor in every case where he shows that there is danger of not being satisfied out of legal assets. History. — Orig. Code 1863, § 3084; Code 1868, § 3096; Code 1873, § 3153; Code 1882, § 3153; Civil Code 1895, § 4004; Civil Code 1910, § 4601…

(a) In all equity cases in which assets of either or both parties are being administered, marshaled, or otherwise disposed of by the court, upon motion of either party or of the court at least 60 days before the term for trial, an order shall be passed bearing the title of the ca…

Joint assets shall be applied to joint debts, and individual assets to individual debts; but, when the joint assets are exhausted, the joint debts may come upon individual assets, the individual debts, without regard to relative dignity as compared with the joint debts, being firs…

Powers, especially of appointment, being always founded on trust or confidence, are peculiarly subjects of equitable supervision. History. — Orig. Code 1863, § 3097; Code 1868, § 3109; Code 1873, § 3166; Code 1882, § 3166; Civil Code 1895, § 4017; Civil Code 1910, § 4614; Code 193…

Equity may not compel a party, having a discretion, to exercise a power of appointment. History. — Orig. Code 1863, § 3098; Code 1868, § 3110; Code 1873, § 3167; Code 1882, § 3167; Civil Code 1895, § 4018; Civil Code 1910, § 4615; Code 1933, § 37-602.

In all cases where no discretion is allowed or the discretion allowed is abused, equity may compel a faithful execution of the power. History. — Orig. Code 1863, § 3102; Code 1868, § 3114; Code 1873, § 3171; Code 1882, § 3171; Civil Code 1895, § 4022; Civil Code 1910, § 4619; Cod…

Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of sale shall be that pointed out for public sales. Unless t…

Unless expressly limited in a will, deed, or other instrument creating a power of sale or unless specifically otherwise provided in such instrument, a power of sale conferred upon an executor, trustee, guardian, or attorney in fact shall authorize a private sale by the executor, t…

Unless expressly limited in an instrument creating a power of sale or unless specifically otherwise provided in the instrument, the power of sale conferred upon an executor, trustee, or guardian may be exercised and executed by an administrator with the will annexed or by a succes…

Any person holding a power of appointment, general or special, whether exercisable by deed or by will only or otherwise, and whether reserved by the holder of the power or conferred upon him by another, may, as to all or any part of the property covered by the power of appointmen…

Any release, relinquishment, or covenant referred to in Code Section 23-2-117 shall be in writing, signed by the person holding the power, and delivered to anyone interested in the power, including any person in the limited class, or to any fiduciary holding the property or any pa…

No fiduciary holding or distributing any property subject to a power of appointment as referred to in Code Section 23-2-117 shall be deemed to have notice of the release, relinquishment, or covenant or be bound thereby unless and until a copy thereof is delivered to the fiduciary. …

Specific performance of a contract, if within the power of the party, will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for nonperformance. History. — Orig. Code 1863, § 3118; Code 1868, § 3130; Code 1873, § 3186; Code 1882, …

(a) The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandone…

Specific performance will not be decreed of a voluntary agreement or merely gratuitous promise. If, however, possession of lands has been given under such an agreement, upon a meritorious consideration, and valuable improvements have been made upon the faith thereof, equity will d…

Mere inadequacy of price, though not sufficient to rescind a contract, may justify a court in refusing to decree a specific performance, as may any other fact showing the contract to be unfair, unjust, or against good conscience. History. — Orig. Code 1863, § 3122; Code 1868, § 31…

The vendor seeking specific performance shall show an ability to comply substantially with his contract in every part and as to all the property. However, a vendor’s want of title or other inability as to part of the property shall not be a good answer to the vendee seeking perfor…

If, for any cause, specific performance is impossible or if the vendee declines to accept a performance in part, the court may proceed to assess damages for the breach of the contract. History. — Orig. Code 1863, § 3124; Code 1868, § 3136; Code 1873, § 3192; Code 1882, § 3192; Civ…

Any good reason in equity and good conscience why the complainant should have the possession of specific personalty to which he has title shall sustain an action for specific performance or delivery and, unless rebutted by other equitable reasons, shall justify a decree. The jury i…

Mistaken or defective executions. When equity may relieve against,

Writing required, §23-2-118. PRESUMPTIONS. Fraud. Fraud may not be presumed, §23-2-57. PRIVIES. Equity, §23-2-34. PRIVITY. Accident and mistake. Relief against original parties or privies, §23-2-34. Equity. Accident and mistake. Relief against original parties or privies, §23-2-3…

— For article discussing effect of contracts involving fraud or inadequate consideration, see 4 Ga. L. Rev. 469 (1970). For article discussing the anachronistic nature of the Georgia Contracts Code as dramatized by comparing the doctrine of consideration as it is formulated in th…

Grounds for equitable relief. Accident and mistake generally, §§23-2-20 to 23-2-34. MUNICIPAL CORPORATIONS —Cont’d Relocation assistance and land acquisition. Exercise of powers by municipality with population of 350,000 or more, §22-4-11.1. Taxpayer protection against false clai…

What mistakes relievable in equity; power to relieve to be exercised cautiously. Mistake of law in instrument by contracting parties. Mistake of law in instrument by agent. When mistake of fact relieved. Form of conveyance contrary to intent. Accident or mistake in execution of p…

Fraud as actual or constructive. Misrepresentation as legal fraud. Suppression of fact as fraud. Surprise as a form of fraud. Use of similar trademarks, names, or devices. Consummation of fraud. Proving existence of fraud. (For effective date, see note.) Confidential relations defi…

Entitlement to contribution; when equity has jurisdiction. Apportionment of contract, rent, or hire. Discharge of encumbrances affecting several interests. Burden of distinguishing mingled property. Offer to pay balance unnecessary. Equitable setoff. Article 5 Administration of A…

The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal, equitable, or both, and apply remedies or relief, legal, equitable, or both, in favor of either party, as the nature of the case may allow or require. History. — Ga. L.…

Any person may, in any civil action, claim equitable relief by appropriate and sufficient pleadings and obtain the equitable relief proper in the case. History. — Ga. L. 1884-85, p. 36, § 1; Civil Code 1895, § 4834; Civil Code 1910, § 5407; Code 1933, § 37-902.

A person who asserts a claim for equitable relief may at any time, by proper pleading and proof, also apply for and obtain any of the extraordinary remedies available from the court in its exercise of equitable powers. History. — Ga. L. 1884-85, p. 36, § 1; Civil Code 1895, § 483…

Any defendant may, by proper pleadings and sufficient evidence, obtain the benefit of extraordinary remedies allowed in equitable proceedings by the superior court. History. — Ga. L. 1884-85, p. 36, § 2; Civil Code 1895, § 4838; Civil Code 1910, § 5411; Code 1933, § 37-906.

The writ of ne exeat shall issue to restrain a person from leaving the jurisdiction of the state. The writ may be granted in the following cases: (1) In favor of an obligor, promisor, or partner, against his co-obligor, joint promisor, or copartner equally or partly responsible w…

In every case of application for a writ of ne exeat, the complaining party shall show that no adequate remedy is afforded at law, and that the defendant is removing or about to remove himself, his property, or the specific property to which the complainant claims title or an inter…

(a) In every application for a writ of ne exeat, the petition or motion must be verified by one or more of the complainants. (b) The judge may, in his discretion, require the complainant to give bond and security for the payment of any damages which the defendant may recover from …

The defendant may relieve himself, his property, or the specific property from the restraint imposed by giving bond in double the value of plaintiff’s claim, with good security, to the officer serving the process, for the forthcoming of each or either, according to the tenor of th…

If the defendant fails or refuses to replevy the property, the court may, in its discretion, make such disposition of it as shall appear most advantageous to all parties. History. — Orig. Code 1863, § 3150; Code 1868, § 3162; Code 1873, § 3229; Code 1882, § 3229; Civil Code 1895,…

In cases of emergency, upon the affidavit of the complainant that he cannot obtain the sanction of the judge in time to remedy the mischief, the writ of ne exeat may issue at once, to continue until the first term of the court to which it is returnable, unless earlier heard by ord…

The proceeding quia timet is sustained in equity for the purpose of causing to be delivered and canceled any instrument which has answered the object of its creation or any forged or other iniquitous deed or other writing which, though not enforced at the time, either casts a clo…

(a) In all proceedings quia timet or proceedings to remove clouds upon titles to real estate, if a proper case is made, the relief sought shall be granted to any complainant irrespective of whether the invalidity of the instrument sought to be canceled appears upon the face of th…

An instrument which, by itself or in connection with proof of possession by a former occupant or other extrinsic facts, gives the claimant thereunder an apparent right in or to the property may constitute a cloud on the title of the true owner; and the latter may proceed to have …