Chason v. O'Neal
| Decision Date | 19 July 1924 |
| Docket Number | 4170. |
| Citation | 124 S.E. 519,158 Ga. 725 |
| Parties | CHASON ET AL. v. O'NEAL ET AL. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 20, 1924.
Syllabus by the Court.
Defendants in error move to dismiss the bill of exceptions, on the ground that it was not sued out within 20 days from the date of the judgment complained of; and this question being for decision by a full bench, and the Justices being equally divided in opinion on this question, Russell, C.J., and Hill and Hines, JJ., being of the opinion that the bill of exceptions should not be dismissed, and Beck, P.J., and Atkinson and Gilbert, JJ., being of the opinion that the bill of exceptions should be dismissed, the motion to dismiss the bill of exceptions is not sustained.
The owner of lands, after having made a deed thereto to secure a debt, can convey his equitable estate therein either absolutely or to secure a debt; and the sale of the lands under a power of sale in the junior security deed and the execution of a deed in pursuance of such sale to purchasers vest in the latter a good and valid title to the lands subject to the prior security deed.
Notwithstanding the Act of August 21, 1922 (Acts 1922, p. 114), which declares all crops to be personalty, the purchaser of lands under a power of sale in a security deed of older date than said act, after its passage, acquired title to crops growing on such lands, grown after the passage of this act, if they were grown and owned by the grantor in such deed; but if the grantor had in fact, prior to such sale, rented in good faith these lands to others, who raised such crops, such purchaser did not acquire title to them, but only the interest of the grantor in such deed in these crops. (a) In view of the provision of the Constitution (article 1, § 3, par. 2) of this state which provides that "no * * * ex post facto law, retroactive law, or law impairing the obligation of contracts" shall be passed, laws should be so construed if this can reasonably be done, as to prescribe only for the future, and not to impair the obligation of contracts.
Such purchasers would be entitled to recover out of the crops grown on these lands such an amount as may appear to be fair and reasonable under the circumstances for the rent of the premises for the year in which the crops were grown notwithstanding an agreement between the grantor and the alleged tenants, made prior to the sale of the lands, that such tenants were to pay no rent.
If there was in fact a tenancy and the intervener purchased from the tenants these crops without notice of landlord's lien or claim for rent, his title would be superior to the claim of the landlord for rent. The burden rests upon him to establish by proof his contention that he was a bona fide purchaser of these crops without notice of the claim or lien of the plaintiffs for rent.
The court erred in not granting an injunction and continuing the receivership until the issues involved in the case could be tried.
Upon the hearing of an application for injunction and receiver in vacation, the judge was without jurisdiction to make a final disposition of the case and to award the proceeds of the crop in dispute, in the hands of the receiver, to the intervener. C. & W. C. R. Co. v. Wooten, 139 Ga. 489, 77 S.E 572; Teutonia Club v. Howard, 141 Ga. 79, 80 S.E. 290, Ann.Cas. 1915B, 1062.
Error from Superior Court, Seminole County; M. J. Yeomans, Judge.
Action by Thomas Chason and another against one Coachman, in which M. E. O'Neal and others intervened. Judgment rendered, and plaintiffs bring error. Reversed.
Chason and Vanlandingham, on August 6, 1923, filed their equitable petition against Coachman, returnable to the October, 1923, term of Seminole superior court, and made this case: On December 3, 1919, Coachman executed and delivered to Chason his promissory note for the principal sum of $805.20, due November 1, 1920, with interest from maturity at 8 per cent. To secure said note Coachman executed to Chason, on said date, his deed to certain described lands, subject to a prior loan deed thereon in favor of the Empire Loan & Trust Company, for the principal sum of $3,000. Said security deed from Coachman to Chason contained an irrevocable power of sale, which authorized Chason, at his option, upon default in the payment of said note by Coachman, to advertise and sell said lands in the manner prescribed in said security deed. Coachman defaulted in the payment of said note when it became due, and Chason advertised said lands for sale in accordance with said power of sale, and, on May 22, 1923, sold the same to petitioners, who were the highest and best bidders, subject to said prior loan deed in favor of the Empire Loan & Trust Company. On said date a deed was duly executed by Coachman, by Chason as his attorney in fact, to petitioners to said lands, subject to said prior loan deed. Said loan, so secured by said prior loan deed, has been assumed and renewed by petitioners in their name, and they are responsible for the same. Interest thereon in the amount of $210 will be due October 1, 1923. Petitioners bought at said sale under said security deed to Chason all the right, title, and equity of Coachman in said land. After their purchase they demanded possession from the defendant, which he refused and still refuses. On August 25, 1923, petitioners brought ejectment against defendant to recover said premises and mesne profits. In said suit they prayed that the title to said premises be decreed in them, and that they have judgment against Coachman for the rents and profits of said property. Said suit is now pending in the superior court of Seminole county. The rental value of said premises is well worth $1,000 per year, for which judgment is asked in said ejectment suit. Coachman is insolvent and unable to respond to plaintiffs for any judgment which they may recover against him for said rents and profits. They are entitled to recover from him said rents from May 22, 1923. The defendant is farming on said lands during 1923. He is gathering and disposing of the crops, and not applying the same to the payment of any indebtedness which plaintiffs have assumed against said premises or in payment of rent, but is appropriating the same to his own use. Petitioners are entitled to said crops for the purpose of paying said rents and for other purposes stated. Unless the court of equity will appoint a receiver to take charge of said premises, they will suffer irreparable damage. They pray the court to appoint a receiver to take charge of the premises, collect the rents due them, and to take charge of all the crops, and to dispose of the same; that the money for said crops be paid into court to be disbursed under its orders and final judgment; and that the defendant be enjoined from interfering with the possession and management of said place by the receiver. This petition was duly verified. On September 7, 1923, a temporary receiver was appointed to take charge of the premises and crops.
Coachman filed his unsworn answer to the petition. He admitted the execution and delivery of his note and security deed to plaintiffs. He denied that any title passed to them under said deed, because of the prior security deed of the Empire Loan & Trust Company. He admitted his default in the payment of his note to Chason, but, from lack of information, he could neither admit nor deny that his security deed to Chason contained a power of sale, and that the sale thereunder was made; but he alleged that, if such sale was made, it was void and did not pass any title to plaintiffs. He admitted that plaintiffs had brought suit against him to recover these lands, and that he refused to deliver possession to them. He alleged that he placed his wife and three children in charge of said lands as tenants, without rent, and permitted them to make a crop thereon and to use the same as their own, they to have whatever they made on the land. Under said agreement they entered into possession of said land, planted, cultivated, and raised crops thereon, which belonged to them, until they, on August 28, 1923, sold said crops to M. E. O'Neal.
O'Neal in his intervention, made these allegations: On September 27, 1923, the court appointed a receiver to take charge of these lands and the crops thereon, and enjoined Coachman from interfering with the possession of the receiver, and further required the defendant to show cause why the restraining order should not be continued in effect and the appointment of a receiver made permanent. Whatever title plaintiffs have is only a title to the real estate, and does not cover the crops, for the reason that plaintiff's title is derived from the purported sale of said lands under a security deed, and the crops, being personalty, did not pass with said sale. Woody, Fred, and Revere Coachman are the children of the defendant, and Nancy Coachman is his wife. The defendant, at the beginning of 1923, placed his wife and children in possession of said lands, with the privilege of making a crop and owning the same. Without any consideration, the wife and children entered upon said lands and made the crops grown thereon. For a valuable consideration, on August 25, 1923, before service of the petition in this case and before the order appointing a receiver, said wife and children conveyed to him all of the crops grown on said lands, after the same had matured. Under the law of Georgia it is immaterial whether the crops mature or not. Such crops are personalty, and the owners had the right to sell the same, and the security deed to the lands did not cover the crops and did not convey the crops. He attached to his intervention a copy of the bill of sale from the wife and children to him. He alleged the receiver had no right to...
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