GODBOLD, Chief Judge:
Bobby D. Moore, a Georgia resident, individually and as executor of the estate of L.
At the time of his death L. T. Moore owned two farms in Georgia, one in Cook County and one in Berrien County. For several years prior to his death L. T. Moore farmed the Berrien County property, and his son, Bobby Moore, farmed the Cook County property. In early 1978 Bobby Moore applied to the Moultrie Production Credit Association (PCA) for three loans, which PCA made after L. T. Moore and Bobby Moore as co-makers signed notes evidencing the debt. As security for the indebtedness L. T. Moore gave to PCA deeds to secure debt covering the Cook County property. When L. T. Moore died testate in early 1979 the PCA indebtedness had not been paid.
L. T. Moore's will specifically devised the Berrien County property to his son, Bobby Moore, and specifically devised the Cook County property, which was subject to the PCA indebtedness, to his daughter, Jimmie F. Lindsey. Bobby Moore and Jimmie F. Lindsey were to share the residuum of the estate equally. The will did not mention any mortgage on any property or whether the devisee of any property that might be subject to mortgage was to take the property encumbered or exonerated of indebtedness.
There were insufficient funds in the residuum of the estate to pay the PCA debts and other indebtedness. Bobby Moore and Lindsey, by this suit and counterclaims, seek to establish whether the Cook County property passes subject to the PCA encumbrance so that Lindsey's property must discharge the debt, or whether Lindsey is entitled to an exoneration of the indebtedness and an adjudication that the debt is that of Bobby Moore individually. The district judge sitting without a jury found that as a matter of law Bobby Moore and L. T. Moore executed the notes as co-makers and that each was jointly and severally liable for payment of the indebtedness, so that PCA and its assigns have a valid claim against L. T. Moore's estate. He held that Bobby Moore as executor would be entitled to obtain from Lindsey or from sale of the Cook County property devised to her the funds necessary to discharge the indebtedness and that Lindsey is not entitled to an exoneration of the Cook County property. He also held that although Bobby Moore is personally liable on the indebtedness neither PCA nor Lindsey is entitled to an equitable lien on the Berrien County property. Finally, the court held that it should refrain from issuing an injunction, appointing a receiver, and ordering an accounting.
We hold that the Georgia long arm statute confers personal jurisdiction over Lindsey and that, because it had no subject matter jurisdiction, the district court properly refrained from issuing an injunction, appointing a receiver, and ordering an accounting. We agree with the district court that the Cook County property bears any part of the PCA indebtedness ultimately to be borne by the estate. We remand to the district court for it to determine whether the estate has a right to indemnity or contribution from Bobby Moore individually.
I. Personal jurisdiction
A federal court in a diversity action enjoys personal jurisdiction over a nonresident
Lindsey contends that even though the Cook County property was specifically devised to her under the will of L. T. Moore she does not "own" the property for purposes of the long arm statute. We hold that Lindsey's interest in the Cook County property is "owned" by her within the meaning of the long arm statute.
Since the reach of the Georgia long arm statute is a question of Georgia state law, federal courts are required to construe it as would the Georgia Supreme Court. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir. 1973). Lindsey contends for purposes of the statute the verb "owns" means being the record owner, McIntosh v. Mid-State Homes, Inc., 232 Ga. 871, 209 S.E.2d 203 (1974), or holding legal title, Porter v. Mid-State Homes, Inc., 133 Ga.App. 706, 213 S.E.2d 10 (1975),
The Georgia courts have not held that the long arm statute extends solely to the holder of legal title, but neither have they held that the statute encompasses all interests in property. The Georgia Supreme Court, however, has interpreted the statute broadly, see Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 401 (1973). Moreover, Georgia has a manifest interest in resolving controversies concerning real property situated in Georgia, Cox v. Long, 143 Ga.App. 182, 183, 237 S.E.2d 672, 674 (1977). The cases finding jurisdiction under the section of the statute that concerns the ownership of real property reflect a protective policy for Georgia citizens. For example, the statute
Under Georgia law property is a "very comprehensive term." Wayne v. Hartridge, 147 Ga. 127, 132, 92 S.E. 937, 939 (1917). It not only signifies real and personal things owned but designates the right of ownership and that which is subject to be owned and enjoyed. Ga.Code Ann. § 85-101. See Fears v. State, 102 Ga. 274, 279, 29 S.E. 463, 465 (1897). A devisee's legally protected interest in devised property, depending on context, is labeled an inchoate title, see e. g., People's National Bank v. Cleveland, 117 Ga. 908, 918, 44 S.E. 20, 25 (1903), an equitable title, see e. g., Schuehler v. Pait, 239 Ga. 520, 522, 238 S.E.2d 65, 67 (1977),
Considering the rights enjoyed by a devisee, the manifest interest of Georgia courts to resolve controversies concerning real estate situated in Georgia, and the expansive interpretation the Georgia courts give the state's long arm statute, we hold that for purposes of the Georgia long arm statute Lindsey owns the property devised to her; thus, long arm service of process on Lindsey in Florida conferred personal jurisdiction over her.
II. The indebtedness
In Georgia when two or more persons sign as co-makers of a promissory note they are jointly and severally liable unless the instrument in its own language specifies the obligation differently. Heard v. Tappan, 116 Ga. 930, 43 S.E. 375 (1903), Ghitter v. Edge, 118 Ga.App. 750, 165 S.E.2d 598 (1968). The holder of the note can proceed against any of the makers without joining the others. Bell v. Citizens & Southern National Bank, 151 Ga.App. 126, 258 S.E.2d 774 (1979). The holder can proceed against an accommodation maker without any resort to his principal, Murphy v. Bank of Dahlonega, 151 Ga.App. 264, 259 S.E.2d 670 (1979), even if the holder of the note knows that the party signed as an accommodation maker. Kerr v. DeKalb County Bank, 135 Ga.App. 154, 217 S.E.2d 434
One who discharges a note can call on his joint debtor for contribution. The right arises upon an implied contract on the joint debtor's part to bear his share of the debt. Powell v. Powell, 171 Ga. 840, 156 S.E. 677 (1931). Likewise an accommodation party can recover on the implied promise of the accommodated party to indemnify him. Turner v. Thompson, Kendrick & Co., 23 Ga. 49 (1857). The liability between principals is not based on the underlying notes but on the inducement to the action.
On remand the district court must determine whether as between the parties L. T. Moore signed as a joint debtor or merely as an accommodation party and whether L. T. Moore as an inter vivos gift agreed not to seek contribution or indemnification for paying off the indebtedness. If as a result of these determinations Bobby Moore individually is liable to the estate any amount received by the estate in discharge of such liability will become part of the residuum.
III. Other counterclaims
Alleging Bobby Moore's conduct as executor evidenced a conflict of interest, a breach of fiduciary duty and an unfitness to serve as an executor, Lindsey counterclaimed for coercive relief including the removal of Bobby Moore as executor, enjoining him from further dealings with the estate, an accounting and the appointment of a receiver. The district court, leaving the matter to state courts, refrained from reaching the merits.
The district court properly refrained. Since these claims constitute a permissive counterclaim under Fed.R.Civ.Pro. 13(b), they must be supported by independent grounds of federal jurisdiction. Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 236 (5th Cir. 1970). This is a diversity action. In general a federal court in a diversity action has jurisdiction over any civil action that may be brought in a state court if the requisite diversity and amount in controversy requirements
An exception to the general rule that federal courts are without jurisdiction to entertain matters affecting probate proceedings other than to establish claims and to determine the rights of persons claiming an interest in the estate exists where a state by statute or custom gives parties a right to bring an action in courts of general jurisdiction. Fakouri v. Cadais, 147 F.2d 667, 670 (5th Cir.), cert. denied, 326 U.S. 742, 66 S.Ct. 54, 90 L.Ed. 443 (1945). In Georgia courts of equity will interfere with the regular administration of estates upon application of any person other than the executor only where there is danger of loss or other injury to his interests. Ga.Code Ann. § 37-403. The danger of loss must be of an immediate loss, however, and the probate court must be unable to grant adequate relief. Turner v. Turner, 210 Ga. 586, 82 S.E.2d 137 (1954). Absent extreme circumstances,
Applying these rules to this case, the district court had jurisdiction to adjudicate the claims of the parties to the assets, and it properly acted to determine liability for the PCA indebtedness. It had no subject matter jurisdiction, however, to issue an injunction forbidding Bobby Moore from further dealing with the estate, to remove the executor, to appoint a receiver or to require an accounting, see, e. g., Robinson v. Georgia Savings Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939) (accounting and personal money judgment), Goff v. First National Bank, 170 Ga. 691, 153 S.E. 767 (1930) (receiver). There were adequate remedies at law. See Ga.Code Ann. §§ 113-1101, 113-1229. The district court properly refrained from addressing these claims.
AFFIRMED in part, REVERSED in part and REMANDED.