Clayton v. Stetson

• Decision Date: 08 July 1897
• Citation: 28 S.E. 983,101 Ga. 634
• Parties: CLAYTON v. STETSON.
• Court: Georgia Supreme Court

28 S.E. 983

101 Ga. 634

CLAYTON v. STETSON.

Supreme Court of Georgia

July 8, 1897

Syllabus by the Court.

Since under the constitution of this state, suits respecting titles to land must be brought in the county where the land lies and equity suits must be brought in that county in which a defendant resides against whom substantial equitable relief is prayed, if a suit be brought by a debtor against his creditor to cancel a conveyance, in pursuance of which the latter has been admitted into possession, such action must be brought in the county of the residence of the creditor. Nor can a suit to recover land (the right of the plaintiff being predicated upon a perfect equity only) be maintained to recover possession, unless the person against whom the equity is sought to be established resides in the county where the land in controversy lies.

Error from superior court, Pulaski county; C. C. Smith, Judge.

Action by Victoria v. Clayton, administratrix with the will annexed of H. D. Clayton, deceased, against James D. Stetson. The petition was dismissed on demurrer, and plaintiff brings error. Affirmed.

Clayton & Clayton, L. C. Ryan, and J. H. Martin, for plaintiff in error.

Hardeman Davis & Turner and A. C. Pate, for defendant in error.

ATKINSON J.

The questions in this case arose upon the following state of facts: Victoria V. Clayton, administratrix with the will annexed of H. D. Clayton, deceased, filed in the superior court of Pulaski county her equitable petition against James D. Stetson for the recovery of certain lands in that county and the rental thereof, and for other relief. The petition alleged as follows: On April 11, 1878, James S. Leith, who resided in the town of Hawkinsville, Pulaski county, Ga., was the owner in fee of a certain lot of land in said county (describing it), and for the purpose of improving the same borrowed from William C. Hamilton $7,793.94, and proceeded to erect thereon a large two-story brick building, with four stores on the lower floor and a hotel above, using the sum so borrowed, together with a large sum of money obtained from other sources, and to secure such borrowed money gave to Hamilton a warranty deed to such property. Hamilton died, leaving as his only heirs at law his widow, Mary Ann Hamilton, and his daughter, Elizabeth Hamilton. In the year 1881 Leith made arrangements with James D. Stetson, who then lived in Hawkinsville, but who now lives in Macon, Bibb county, Ga., to borrow from him the money necessary to take up and pay off the claim of Hamilton heirs against him; and in pursuance of this arrangement Stetson paid to the Hamilton heirs for Leith the amount due by Leith to them, on or about August 2, 1881, and to secure himself for the money so paid out took from Mary Ann and Elizabeth Hamilton their warranty deed to said property. The amount that Stetson claims to have paid to the Hamilton heirs for Leith, and stated as the consideration in the last-mentioned deed, is $10,890.72. On July 30, 1881, as a part of the arrangement for the loan of said money by Stetson, Leith made to Stetson a power of attorney, giving to him control of all of said property, together with its rents, issues, and profits; and Stetson, as additional security, demanded that Leith should enter into an agreement with him to pay him (Stetson) $1,000 and all expenses and attorney's fees for obtaining for Leith the sum necessary for him to take up the claim of the Hamilton heirs; that said $1,000 should be paid out of the rental of said property, in addition to 8 per cent. on the money borrowed; to allow Stetson $250 per annum unless the gross revenue from the property should exceed $2,500 per annum, and in that event Stetson to receive 10 per cent. commissions on the gross revenue, and, in the event Stetson sold the property, to pay him 10 per cent. on the gross amount of the sale and all expenses incurred; and that the revenue from the property, after paying interest, insurance, taxes, and commissions, should be applied to either repairs or improvements on the property, or to reducing the principal of the debt, as Stetson preferred. The only amount Leith was justly indebted to Stetson was $7,793.94, with interest thereon at 8 per cent. per annum from April 11, 1878, it being the consideration expressed in the deed of Leith to Hamilton, above referred to. Leith was able and competent to look after the preservation of the property and the collection of the rents therefrom, and the arrangement specified in the power of attorney and agreement by which Stetson was to receive $1,000 as commissions and $250 per annum for the collections of rents was a device to avoid the usury laws of the state, and any claim on the part of said Stetson to said $1,000 and $250 per annum is usurious and illegal. On August 2, 1881, immediately after the execution of the deed from Mary Ann and Elizabeth Hamilton to Stetson, he took possession of the property under said power of attorney and agreement, and has collected all of the rentals arising therefrom from that time to the present; and Stetson is now in possession of the property under said power of attorney and agreement, and in the enjoyment of the issues, rents, and profits thereof. There are on the property, in addition to the brick stores and hotel hereinbefore referred to, two large frame storehouses, and the value of the rental of said property is $2,500 per annum for every year since Stetson went into possession up to the present. Petitioner's testator and Leith were relatives and lifelong friends, and Leith, on February 14, 1883, for and in consideration of natural love of and affection for said testator and one dollar in hand paid, executed to him a warranty deed to said property. At the time of the...