Alexander v. Chipstead
| Docket Number | 2608. |
| Decision Date | 02 March 1922 |
| Citation | 111 S.E. 552,152 Ga. 851 |
| Parties | ALEXANDER v. CHIPSTEAD. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
By the act of August 15, 1921 (Laws 1921, p. 233), when the final bill of exceptions shows that exceptions pendente lite were properly filed in the trial court, and when the contents of such exceptions pendente lite are recited in the bill of exceptions, or a copy thereof appears in the transcript of the record, an assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted, is sufficient; and this act being remedial in its nature, applies to bills of exception sued out and certified before its passage.
Independently of said statute, an assignment of error on the rulings excepted to in exceptions pendente lite, and not on such exceptions themselves, is a good assignment of error.
A plaintiff may at any stage of the cause, as a matter of right, amend his petition in all respects, whether in matter of form or of substance, provided there is enough in his petition to amend by; and this he may do, if made before any order or judgment sustaining a demurrer to his petition has been entered, although, in reply to a question by the court at the conclusion of the argument on the demurrer, his counsel replied that he had nothing further to offer, the amendment being offered after such question and reply.
The court erred in rejecting the amendment offered by the plaintiff, alleging that the defendant agreed with her intestate that if he would give additional security the defendant would extend the time of payment of the interest note due November 17, 1916, for one year, and that in pursuance of the express agreement of the defendant to give such extension her intestate executed to the defendant a bill of sale of certain personal property to secure such indebtedness.
When the grantor in a security deed dies after the execution thereof, and the grantee undertakes to exercise a power of sale therein contained, the property should be advertised and sold as the property of the estate of the grantor.
The petition, without such amendment, set up a cause of action and the court erred in sustaining the general demurrer thereto.
The court did not err in sustaining any of the grounds of special demurrer, except such as are pointed out in the opinion in this case.
The court erred in directing a verdict for the defendant, under the pleadings and evidence.
Error from Superior Court, Early County; W. C. Worrill, Judge.
Suit by Lillian B. Alexander, administratrix of Eric A. Gay, against M. T. Chipstead. Judgment for defendant, and plaintiff brings error. Reversed.
Lillian B. Gay (now Alexander), as administratrix of Eric A. Gay filed her complaint against M. T. Chipstead, and made this case: She is the widow of said Eric A. Gay, who died November 21, 1916. Gay bought from Chipstead, on November 17, 1915, a plantation of 611 acres, more or less, known as Lime Branch place, and in payment conveyed to Chipstead another place which he owned, and gave to Chipstead his note for $7,000 dated November 17, 1915, and due November 17, 1920, with five notes, each for $560, for the interest on said principal note, falling due, respectively, one, two, three, four, and five years from date. To secure said notes Gay executed to Chipstead a deed to said place with power of sale. Gay died on November 21, 1916. On November 29, 1916, Chipstead approached petitioner about this indebtedness, and stated that he had no disposition to press her for the payment thereof, but was willing not only to give her time in which to arrange matters, but was also willing to assist her in any way he could in getting these matters adjusted. He suggested to her that it would be expensive to have administration on the estate of her husband, and that the proper course to pursue would be to have said Lime Branch place sold for the purpose of putting the title in her, stating that she could bid the same in, and that he would bid it in for her, when she could give her notes for said debt secured by her deed to said place. He expressly assured her that, if a sale of the property were had, it would be merely for the purpose of vesting the title in her. On December 1, 1916, she offered Chipstead the sum due on the interest note which fell due November 17, 1916, with interest thereon to said date.
At the time said interest note fell due. Gay was in a dying condition. Owing to the death of her husband she was not able physically or mentally to look after the payment of said interest. At the time she tendered Chipstead said interest, he said he had not elected to declare said indebtedness due. He declined to accept payment of the interest note, stating that she had other things to think of, that there was no need of hurry, that all these matters could later be satisfactorily adjusted, and that she need not fear that he would do anything detrimental to her interest or the interest of the estate. On December 3, 1916, she, relying on said assurances, went to Florida, but before leaving she made arrangements with certain croppers to work on said Lime Branch place. These arrangements were well known to Chipstead, he having offered to assist her in procuring labor for the operation of said place for the coming year, and in her farming operations. While in Florida she received from him a telegram stating that her croppers were becoming dissatisfied and were leaving the place. She immediately came back, and ascertained that Chipstead had been the cause of the croppers leaving the place, he having told them that she had left Georgia for good, and was not coming back, causing them to leave the place. On December 26, 1916, Chipstead attempted, under said power of sale, to sell said place to himself. She is advised and believes that he made a deed to himself. He is now in possession of said place under said deed, which is not of record. He deliberately, and with the intention of defrauding the estate out of said property and the rents thereof, refused to accept the interest. She was lulled into security by his assurance that said land would be sold only for the purpose of vesting the title in her, and not for the purpose of subjecting the same to said indebtedness. This assurance was made to her by him with the intention of defrauding her husband's estate. The sale to himself of said place is void, for the reason that she was fraudulently induced to believe that the sale was being made only for the purpose of vesting the title in her, and the further reason that the notice, under which said sale was held, does not advertise the property to be sold as the property of the estate of her intestate.
The yearly rental value of said place is $1,500 or other large sum. By the statement made by Chipstead to her croppers, and their consequent dissatisfaction, causing them to leave the place, and by his unlawful entry and continued occupation of said place, he has made it impossible for her to rent the place for the coming year, and has damaged her in the sum of $1,500 or other large sum per annum. The fair market value of the place is $15,000. Chipstead, just a few days prior to the death of her husband, and while he was practically in a dying condition and wholly unable to comprehend any business transaction, on November 14, 1916, fraudulently obtained his signature to a bill of sale of certain personal property consisting of mules and farm products, knowing that he was in a dying condition and unable to transact business, as additional security for the above indebtedness. At the time Chipstead sold Lime Branch place he sold the personalty described in said bill of sale, and became the purchaser at that sale. Said personalty is worth the sum of $1,500. The sale of it was wholly void, for the reason that the bill of sale did not confer upon Chipstead the power to sell it without due process of law, and because her husband was not rational at the time of his signature. The yearly rental value of said personalty is $150. It was the duty of said Chipstead, under the circumstances, upon his election to declare the entire debt due upon default of any payment of interest, to give her ample and sufficient time to protect her rights in the premises; but, instead of doing so, with the intention to defraud her he told her that he was in no hurry for said interest payment due November 17, 1916, and that she need not pay the same at that time. By the security deed Chipstead was given the power to sell said place after advertising the sale for two consecutive times in the official organ of Early county, should said indebtedness or any part thereof be not paid at maturity. The only amount due him by the estate of her husband was the interest note due November 17, 1916, which she had offered to pay, and payment of which he had declined. In view of these facts, there was no such default as would give the defendant the right to declare all of said indebtedness due. Said sale was void, because the advertisement did not state that it was sold in pursuance of a power of sale granted in the security deed, nor did it state that the sale would be made by any person authorized to sell under the power of sale; also, because the land brought a grossly inadequate price. Under the circumstances of the transaction, it was a fraud upon the estate of Gay for Chipstead to have treated the whole of the notes due so soon after his death, to have sold that quantity of land in bulk, when it might easily have been subdivided and sold in parcels when it would have brought more money, and to have sold said lands on any other than the regular sales day. The plaintiff prayed that the deed from Chipstead to himself be delivered up and canceled; that...
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