Bowman v. Poole, 19924

• Citation: 102 S.E.2d 561,213 Ga. 867
• Decision Date: 10 February 1958
• Docket Number: No. 19924,19924
• Parties: Dora Lee BOWMAN, Administratrix, v. John J. POOLE et al.
• Court: Supreme Court of Georgia

Page 561

102 S.E.2d 561

213 Ga. 867

Dora Lee BOWMAN, Administratrix, v. John J. POOLE et al.

No. 19924.

Supreme Court of Georgia.

Feb. 10, 1958.

Rehearing Denied March 7, 1958.

Jas. L. Moore, Atlanta, for plaintiff in error.

Edwin Pearce, Margaret H. Fairleigh, Poole, Pearce & Hall, Atlanta, for defendants in error. Syllabus Opinion by the Court

HAWKINS, Justice.

The history of the litigation concerning the property here involved, which has now been in progress nearly twelve years (Bowman v. Bowman, 79 Ga.App. 240, 53 S.E.2d 244; Bowman v. Bowman, 203 Ga. 206, 45 S.E.2d 415; Bowman v. Bowman, 205 Ga. 796, 55 S.E.2d 298; Bowman v. Bowman, 206 Ga. 262, 56 S.E.2d 497; Bowman v. Bowman, 207 Ga. 226, 60 S.E.2d 242; Bowman v. Bowman, 209 Ga. 200, 71 S.E.2d 84; Bowman v. Bowman, 210 Ga. 259, 78 S.E.2d 801, 347 U.S. 1017, 74 S.Ct. 865, 98 L.Ed. 1139, 348 U.S. 852, 75 S.Ct. 19,99 L.Ed. 671; Bowman v. Poole, 212 Ga, 261, 91 S.E.2d 770; Bowman v. Poole, 212 Ga. 697, 95 S.E.2d 375), is a striking illustration of the 'High Cost of Hurt Feelings.' The plaintiff's petition alleges that the property involved is worth $7,500. The present record consists of 260 pages of pleadings and evidence. It appears that counsel for one of the parties now holds a lien for $1,000 as attorney's fees for services rendered in the various phases of this litigation, and it is easily conceivable that the costs of the various proceedings, trials, and appeals far exceed the value of the property. The record is replete with evidence of the wounded feelings of the parties and of at least some of counsel.

The opinion of this court when this particular case was here before (Bowman v. Poole, 212 Ga. 261, 91 S.E.2d 770, supra) contains a statement of the substance of the plaintiff's petition, and it is unnecessary to repeat what was there said. Suffice it to say that the plaintiff, alleging herself to be the holder of a junior security deed covering the property here involved, alleged that she, through her counsel, made a tender to the defendant Poole as transferee of a superior security deed, of the amount due thereon, and demanded an assignment of the security deed and note held by him, which tender he refused and thereafter proceeded to sell the property under the power of sale contained in the security deed, and bought the property in at such sale. She sought to have the sale and the deed executed in pursuance thereof declared null and void; to require the defendant Poole to transfer and assign his security deed to her; to have title to the property decreed in her; to require the defendant to account to the plaintiff for all rents collected, and to have judgment against the defendant for $500 as attorney fees because of the alleged bad faith of the defendant in refusing the tender. This court, ruling only upon a general demurrer, and not upon the issues made by the defendant's answer or on the merits of the case as disclosed by the evidence adduced upon the trial, held that the petition stated a cause of action, and reversed the judgment sustaining a general demurrer. The defendant's answer and cross-bill as amended alleges that, immediately upon the rendition of that decision by this court, the defendant Poole voluntarily canceled the sale under power and the deed pursuant thereto, and executed a deed to Joanne W. Bowman, the alleged holder of the legal fee title, conveying such interest as he might have in said property to her, subject to: (1) the first security deed originally made to Atlanta Federal Savings and Loan Association and assigned to the defendant Poole; and (2) the rights of the grantor under and by virtue of the attorneys' lien and judgment thereon in a described suit in Fulton Superior Court, the deed executed by the defendant Poole to Joanne W. Bowman reciting: 'The purpose and effect of this deed shall be to cancel and set aside the sale under power and deed made pursuant thereto, and to revest the title exactly as it was before such sale and the execution of such deed.'

In order to simplify further the issues, the other partners of the law firm of which the defendant Poole was a member, and the owners of the judgment and lien for attorney fees, transferred their interest in the same to the defendant Poole, in order that all matters relating to the title to the property could be determined in this case. The defendant's answer and cross bill an amended alleged these facts, and also that, at the time of the aforesaid tender by the plaintiff's attorney, he, as holder of the junior lien for attorney fees, offered to pay to the plaintiff the amount due on her claim so as to protect his junior lien for attorney fees, and that the plaintiff's attorney declined to disclose the amount claimed to be due the plaintiff and refused to permit the defendant to do so; that the defendant acted in good faith in the matter; and that the plaintiff was not entitled to recover any attorney fees for bad faith on his part.

Following the execution of the deed by the defendant Poole to Joanne W. Bowman, she filed her petition for leave to intervene in the cause on four counts, each count alleging her rights in the property by reason of an award of the same to her as a year's support, the verdict and decree of Fulton Superior Court finding void a certain quitclaim deed from her husband, Frank K. Bowman, to Fred E. Bowman, the plaintiff's intestate, and the execution by the defendant Poole of the quitclaim deed to the intervenor subsequently to the former appearance of the case in this court revesting in her the equity in the property which she had before the deed under power of sale was executed, subject to the senior deed to secure debt transferred to the defendant Poole by Atlanta Federal Savings and Loan Association. Both the defendant Poole and the intervenor attack the loan deed upon which the plaintiff bases her right of action upon the grounds of: (1) forgery; (2) lack of consideration; (3) payment by rents and profits from the property received by the plaintiff and her intestate while in possession of the property; and (4) undue influence inducing its execution; and prayed that the said deed be declared null and void for each of said reasons, or, in the alternative, that an accounting be had to determine what, if anything, was still owing on the said debt, and offering to pay any amount that might be found by an accounting to be due on said note. To the defendant's answer and cross bill and to the intervention, the plaintiff filed demurrers, which were overruled; and to these judgments and to the judgments allowing the intervention and overruling a motion to dismiss the same, the plaintiff excepts.

On the trial of the case, in answer to certain questions submitted by the trial judge, the jury found: (1) that the plaintiff was not entitled to recover attorney fees from the defendant; (2) that the security deed held by the plaintiff was a valid deed; and (3) that there was an unpaid outstanding balance in a stated amount due on the debt secured by said deed. Based upon these answers by the jury, the trial court entered a decree as follows;

'It is considered, ordered, adjudged and decreed as follows:

'1. That the defendant have judgment against the plaintiff on the issue of attorney's fees raised by the prayers to plaintiff's petition. 2. The pleadings showing without dispute, and all the parties admitting, that the defendant voluntarily, by his own deed, prior to the trial, set aside the foreclosure attacked in the petition and restored the title to the property to Joanne W. Bowman, who was the owner of the property prior to the sale under power, no issue remains in the case and no decree is rendered on such prayers as relate to the foreclosure and the deed in pursuance thereof. 3. The deed to secure debt recorded in Deed Book 2823, Page 352, Fulton County Records, and shown as Exhibit B to the petition, is hereby adjudged and decreed to be a valid instrument.

'It is further adjudged and decreed that the balance due secured by such instrument on the 5th day of June, 1957, is $40.00 principal and $315.80 interest. The defendant and the intervenor having on this day paid in to the Clerk of this Court the sum of $356.00 covering the amount of principal and interest as found by the jury, and future interest to the date of payment, the same is hereby adjudged and decreed to be full and final satisfaction of the aforesaid security deed and the Clerk of the Superior Court of Fulton County is hereby authorized and directed to record a certified copy of this decree as full and final satisfaction and cancellation of said deed to secure debt recorded in Deed Book 2823, Page 352, in the office of the Clerk of the Superior Court of Fulton County. 4. The plaintiff is entitled to withdraw the sum paid in to Court by the defendant and the intervenor at any time upon application, same being in full...