GA Code § 23-1-8 (2021)
2021 Georgia Code|Title 23 - Equity|Chapter 1 - General Provisions|§ 23-1-8. Equity Cconsiders Done What Ought to Be Done

 Equity considers that done which ought to be done and directs its relief accordingly.   (Orig. Code 1863, § 3019; Code 1868, § 3031; Code 1873, § 3086; Code 1882, § 3086; Civil Code 1895, § 3926; Civil Code 1910, § 4523; Code 1933, § 37-106.)   Law reviews.   - For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006).   JUDICIAL DECISIONS    Equity treats as done that which in fairness ought to have been done.  United States v. Ferguson, 409 F. Supp. 393 (S.D. Ga. 1975), aff'd, 529 F.2d 999 (5th Cir. 1976).   Prevention of forfeitures.    - Since equity considers that done which ought to be done, it is therefore recognized that in order to prevent forfeitures, which are not favored, equity will lay hold upon any expressed intention of an insured to designate an eligible beneficiary, or any inchoate effort to designate a substituted beneficiary in lieu of a deceased one, when death or illness of the insured prevents the filling of such vacancy. Hewell v. Atlanta Police Relief Ass'n, 184 Ga. 702, 192 S.E. 828 (1937).    When the plaintiffs are alleged to constitute the sole survivors of the class which could be designated as beneficiaries of the defendant relief association, and for whose benefit the certificate was taken out and maintained, equity in the exercise of its jurisdiction will account that done which ought to have been done if opportunity had been given, and in order to avoid a forfeiture will treat such children, the plaintiffs, as being in good conscience as much as the actual beneficiaries under the certificate as if the insured father had been afforded opportunity to name and had actually named them as such. Hewell v. Atlanta Police Relief Ass'n, 184 Ga. 702, 192 S.E. 828 (1937).   Equity in adoption proceeding.    - Since equity considers that done which ought to have been done, equity will decree that a child is entitled to the fruits of a legal adoption when the act of formal adoption had not been consummated. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    This section sets out the general principle on which a court of equity may, in a proper case, allow inheritance under the so-called doctrine of virtual adoption. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    Despite the death of the party against whom relief is sought, equity will grant relief and decree that to be done which ought to have been done. Holsomback v. Caldwell, 218 Ga. 393, 128 S.E.2d 47 (1962).   Equity in foreclosure proceedings.    - When to a proceeding to foreclose a deed to secure debt as an equitable mortgage, which prays for judgment for principal, interest, and attorney's fees, a debtor files a plea in which it is alleged that the petitioner held as collateral fire insurance policies with a loss-payable clause in favor of the petitioner aggregating more than the amount of the debt, which had become due and payable as the result of a fire some months before there was a default on the debt, and that the insurance could have been collected at any time, but was not collected due solely to the negligence of the petitioner who had made no demand for payment, and that the attorney's fees sought in the foreclosure proceeding would have been unnecessary had such collection been made, such plea alleged facts sufficient to show a breach of duty, both in law and in equity, upon the part of the creditor, which would prevent it from collecting attorney's fees and deny the creditor any relief in equity. Irwin v. Life & Cas. Ins. Co., 204 Ga. 582, 50 S.E.2d 354 (1948).   Equity in political offices.    - Even though an appointment may have been made to an office when the term of the incumbent had not expired, and in pursuance of the order of appointment the incumbent had been forcibly removed from the room or quarters of the incumbent's office and thereby deprived of the opportunity of exercising the duties of the office, such incumbent will in equity continue to be treated as the incumbent for the purpose of protecting the incumbent in the incumbent's right to function as such official, pending a judicial determination of the validity of such appointment. Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971).   Equity in giving of security.   - The court considers as actually having been performed acts which have been directed or which have agreed or intended to be done. Thus, an agreement to give security may, in a proper case, be deemed to have been executed by the giving of security. United States v. Ferguson, 409 F. Supp. 393 (S.D. Ga. 1975), aff'd, 529 F.2d 999 (5th Cir. 1976).   What should have been done must be determined.    - Equitable maxim, codified at O.C.G.A. § 23-1-8, that equity considers that done which ought to be done and directs its relief accordingly, cannot be fulfilled when that which should have been done still remains to be determined. Wallace v. Wallace, 301 Ga. 195, 800 S.E.2d 303 (2017).    There may be valid contract to adopt without the express use of term "adopt" in contract. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    Language clearly showing intent to effect an adoption according to the law, considered under the attendant and surrounding circumstances though not containing precise legal phraseology, is sufficient to create a virtual adoption. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    An oral agreement to adopt may be shown by the acts, conduct, and admissions of the parties, and in order to establish such a contract, the exact word "adopt" need not be used. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    In a case of virtual adoption the alleged agreement must be proved so clearly, strongly, and satisfactorily as to leave no reasonable doubt in the minds of the jury. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    An authenticated copy of an application of the parent for a homestead which contained the following question and answer, "If married, of whom does your family consist?" "My wife and adopted daughter and myself," was relevant in an action to prove a virtual adoption as illustrating whether there had been a contract to adopt the child, since it indicates that the child was living with the parents at that time. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    A parol obligation of a person to adopt the child of another as one's own, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years and during the obligor's life, may be enforced in equity upon the death of the obligor by decreeing the child entitled as a child to the property of the obligor, undisposed of by will. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).    An agreement by a married couple that if the natural parent would relinquish all claims of all nature to the natural parent's child the couple would adopt the child as their own, would love the child and provide for the child fully all things essential to the child's welfare, and make the child their heir to inherit at their death as if the child had been their natural child, is sufficient to create a contract of adoption. Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946).   Equitable relief available under an indemnity contract.    - After the Chapter 11 debtor's officer settled a lawsuit against the debtor and the officer without informing the debtor's successor of the settlement, as equitable relief under O.C.G.A. § 23-1-8, the officer was reimbursed under an indemnification clause only for an amount the debtor had previously authorized for settlement. In re First Am. Health Care of Ga., Inc., 288 Bankr. 598 (Bankr. S.D. Ga. 2002).   Specific performance properly applied.    - Specific performance was the proper remedy since there was no adequate remedy at law given the nature of the stock in the small, family-owned business, and the explicit acknowledgment in the shareholders' buy-sell agreement that specific performance was the appropriate remedy in the event of a breach. Moreover, given the failure of all parties to strictly follow the terms of either the agreement or bylaws, an equitable remedy considered that done which ought to be done. Wallace v. Wallace, 345 Ga. App. 764, 813 S.E.2d 428 (2018), cert. denied, No. S18C1329, 2019 Ga. LEXIS 42, cert. denied, No. S18C1332, 2019 Ga. LEXIS 48 (Ga. 2019), cert. denied, 2019 U.S. LEXIS 6165, 205 L. Ed. 2d 30 (U.S. 2019).   Determining beneficiary under pension plan.    - Because a city employee asked for and completed forms given to the employee by the city's human resources department to change the beneficiary of the employee's retirement plan to the employee's brother, but was not given the correct form for that change by the human resources department, a trial court properly used the court's equity power to hold that the brother was entitled to the benefit. Westmoreland v. Westmoreland, 280 Ga. 33, 622 S.E.2d 328 (2005).   In pari delicto.    - Georgia law follows the well-settled maxim that equity seeks to do equity, O.C.G.A. § 23-1-8, and the equitable doctrine of in pari delicto is based on the principle that to give the plaintiff relief would contravene public morals and impair the good of society; hence, it should not be applied in a case in which to withhold relief would, to a greater extent, offend public morals. Hays v. Paul, Hastings, Janofsky & Walker LLP, F. Supp. 2d (N.D. Ga. Sept. 14, 2006).    Consistent with O.C.G.A. § 23-1-8, the in pari delicto defense was inapplicable because liquidators were pursuing claims of fraudulent transfer, conspiracy, and procuring breach of fiduciary duty for the benefit of innocent creditors. Am. Pegasus SPC v. Clear Skies Holding Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 22, 2015).    Cited in Gilford v. Green, 33 Ga. App. 1, 125 S.E. 80 (1924); Richards v. Plaza Hotel, Inc., 171 Ga. 827, 156 S.E. 809 (1931); Rowe v. Cole, 176 Ga. 592, 168 S.E. 882 (1933); Biddle v. Papa, 180 Ga. 468, 179 S.E. 357 (1935); Rose v. Crane Heating Co., 198 Ga. 295, 31 S.E.2d 717 (1944); Shaw v. Miller, 215 Ga. 413, 110 S.E.2d 759 (1959); Bair v. Willis, 218 Ga. 563, 129 S.E.2d 774 (1963); Stith v. Willis, 219 Ga. 62, 131 S.E.2d 620 (1963); Jordan Co. v. Bethlehem Steel Corp., 309 F. Supp. 148 (S.D. Ga. 1970); McArthur v. Southern Airways, Inc., 404 F. Supp. 508 (N.D. Ga. 1975); Prince v. Black, 256 Ga. 79, 344 S.E.2d 411 (1986); Brown v. Brown, 265 Ga. 725, 462 S.E.2d 609 (1995).   RESEARCH REFERENCES   Am. Jur. 2d.   - 27 Am. Jur. 2d, Equity, § 126.   C.J.S.   - 30 C.J.S., Equity, § 106.   ALR.    - Constitutionality of statute conferring on chancery courts power to abate public nuisance, 22 A.L.R. 542; 75 A.L.R. 1298.    Power of equity in absence of statute to render deficiency judgment in foreclosure action, 34 A.L.R. 1015.    Validity and enforceability of restrictive covenants in contracts of employment, 52 A.L.R. 1362; 67 A.L.R. 1002; 98 A.L.R. 963.    Doctrine of equitable conversion in relation to taxation, 112 A.L.R. 23.   Right to reformation of contract or instrument as affected by intervening rights of third persons, 79 A.L.R.2d 1180.   Rule denying recovery of property to one who conveyed to defraud creditors as applicable where claim which motivated the conveyance was never established, 6 A.L.R.4th 862.