Cottleet Ux v. Harrold
| Decision Date | 28 February 1884 |
| Citation | 72 Ga. 830 |
| Court | Georgia Supreme Court |
| Parties | Cottleet ux. vs. Harrold, Johnson & Company. |
[Blandford, Justice, being disqualified, Judge Branham, of the Rome circuit, was appointed to preside in his stead.]
Title. Liens. Partnership. Injunction. Trespass. Equity. Trusts. Tenants in Common. Practice in Supreme Court. Before Judge Clarke. Sumter County. At Chambers. January 9, 1884.
Reported in the decision.
B. B. Hinton; C. Anderson, for plaintiffs in error.
Hawkins & Hawkins, for defendants.
Thos. Harrold, Uriah B. Harrold and Henry R. Johnson, partners, composing the firm of Harrold, Johnson & Company, filed their bill in Sumter superior court against Obadiah Cottle and his wife, Eldora V. Cottle, claiming title to land lots numbers 160, 161, 162, parts of lots 138 and 158, in the 26th district of Sumter county, containing 1, 000 acres, and known as the Joseph Brown plantation, alleging that Albertus L. Beckwith was in possession of the land as their tenant, and that the defendants, in December, 1883, in the night, under some pretended but fraudulent claim, seeking to get possession of the land, moved into a one-room out-house in an oat-field, remote from the dwelling, and now claim to be in possession of the land, are taking water from the fish pond, cutting wood from the place, and are threatening to interfere with the tenants, to dispossess them, and will likely so interfere with them that they will be unable to keep them on the farm, and that the defendants are insolvent; and they therefore pray that they be enjoined from using water and wood on the place, from injuring the crops, from interfering with their possession and with their tenants in any way.
The defendant O. J. Cottle claimed no title to the land, but alleged that the title was in his wife, Eldora V. Cottle. She claims that she bought the land, in 1871, from Aaron T. Hart and Isaac Hart; that they then made her a deed to it, and that she then went into possession and sold it to Hansel Beckwith, in 1873, for 160 bales of cotton, gave him her bond for titles, which Hansel still has in his possession, put him in possession of the land, and that he held the whole of it as her tenant until the latter part of 18S2, when he let his son, Albertus, without her consent, into the possession of the dwelling house; that Albertus is colluding with complainants, is holding for them, and seeksto deprive her of her right to the land. She says Hansel has never paid her for the land, and has never repudiated the contract, and that the bond for titles made by complainants was made after she had given Hansel her bond, and while he was in possession under her. She denies the possession of complainants, and that they have any perscriptive title to the land. She admits her insolvency, unless she is the owner of the land. The bill of exceptions comes here under a pauper affidavit. The defendant did not produce any deed to herself, because she says she was unable to find it, and that she gave it to Hansel Beckwith with the other back deeds to the land, which complainants have, and which she claims as her papers, to be used on the hearing of a bill filed by him against Samuel H. Hawkins.
The complainants produced on the hearing the three back deeds referred to, made in 1868, conveying the land to Aaron T. and Isaac Hart, and also a deed from I. N, Hart to Allen Fort, conveying his interest or claim in the land, made in 1875, and Fort's quit-claim deed to them. These deeds are not very material to the questions involved. The complainants rely upon the following as their paper title, to-wit: A mortgage, dated May 9th, 1870, from I. N. Hart, Samuel G. Hart, Aaron T. Hart, and D. F. Hart, partners, composing the firm of I. N. Hart & Company, to Ketchum & Hartridge, on the lands in controversy (and on some personal property), given to secure their two promissory notes for two thousand dollars, due October 1st and November 1st, 1870, payable to the order of Isaac Hart and indorsed by him. A mortgage fi. fa, based on this mortgage, from Sumter superior court, issued December 1st, 1875, for $1,737.75, in favor of Robert M. Jourdan and Lewis G. Young, assignees in bankruptcy of Ketchum & Hartridge, against the lands as the property of I. N. Hart & Company. The names of the members of the firm are not stated in this fi. fa. It was assigned by the plaintiffs' attorney, on the of December, 1875, tothe complainants, and levied on the lands on the following day, and the lands sold to the complainants. A deed from A. W. Wheeler, sheriff, dated February 1st, 1876, made in pursuance of said sale, in consideration of $1,800.-00 to the complainants.
The firm names set forth in this deed are Thomas Harrold, Henry R. Johnson and Uriah B. Harrold.
A bond for titles from complainants to Hansel Beckwith, dated March 10th, 1876, binding them to make a quit-claim title to Beckwith on the payment of his notes for $2,600.00 given for the land. This bond and sale was cancelled on the 5th of March, 1882, no part of the notes having been paid, the papers returned to the respective parties, and an entry on the bond recites that possession of the land was surrendered to complainants.
A deed from Eldora V. Cottle to Henry Johnson, who, we are informed, is Henry R. Johnson, of complainants' firm, dated June 10th, 1875, conveying the land in controversy to him The complainants claim title under these papers and exclusive possession from the 10th of February, 1876, up to the 8th day of December, 1883, when the defendants took possession of the out-house, and say they are still in possession by Albertus L. Beckwith, their tenant.
One of the leading features of the controversy is the possession of Hansel Beckwith. Both parties claim him as their tenant. The complainants show that Eldora V. Cottle brought her action of complaint for the land, in May, 1883, against them and both the Beckwiths, and to recover mesne profits from the first day of January,
18Id.. Hansel Beckwith swears that he was present at the sale of the land under the Ketchum & Hartridge mortgage fi.fa., made on the first Tuesday in February, 1876; that the complainants bought it, and that the sheriff' then put them in possession; that Eldora V. Cottle knew it, made no objection to it, and that Aaron T. Hart, one of the defendants in the fi.fa., and who was understood to be thereal owner, consented thereto; that on the 10th of March, 1876, he bought the land from the complainants with the knowledge of Eldora V. Cottle and the consent of Aaron T. Hart, and went into immediate possession thereof; and he and Albertus Beckwith both swear that he held possession until the 5th day of March, 1882, when, being unable to make payment, his contract was rescinded and he surrendered his bond for titles with possession of the land to complainants; that John H. Walker, as agent of complainants, then took charge of it, and put Albertus Beckwith in possession as their tenant.
On the other hand, defendants say by their answers, their affidavits and those of Aaron T. and I. N. Hart, that the land was conveyed to Aaron and Isaac Hart by Harvey, executor of Brown; that they went into possession and conveyed it to Eldora V. Cottle on the 8th of October, 1871; that she then took possession of it and resided on it, and that in 1873 she sold it to Hansel Beckwith for 160 bales of cotton, to be delivered, and gave him her bond for titles to convey to him when he should pay the purchase money, and that he took possession under his purchase from her, and held under her until he let Albertus Beckwith into the possession of the dwelling house as complainants' tenant in 1882; that Hansel Beckwith swore in a bill filed by him in 1874 against Samuel H. Hawkins and I. N. Hart & Co., a copy of which is in the bill of exceptions; that he went into possession as her tenant; that he offered to surrender to Eldora V. Cottle a few days before the bill in this case was filed; that she entered on the land peaceably, and went into the house in the oat-field with his permission, and they deny that they knew Hansel Beckwith claimed to be complainants' tenant, that he was ever dispossessed by the sheriff, and that complainants are in possession of the land.
Complainants claim that Eldora V. Cottle is the sister-in-law of Aaron T. Hart; that the deed to her is without consideration, made to shield him from his creditors, andis therefore void, and that her sale to Hansel Beckwith was a part of this scheme; that Aaron T. Hart is the real party at interest in this and two other equity cases, copies of which are embraced as evidence in the bill of exceptions; and in support of this claim they refer to the sworn copy bills and answers, wherein it is alleged that though the land was conveyed by Harvey, executor to Aaron and Isaac Hart, the firm of I. N. Hart & Co. paid for it, and that it belonged to the firm; and that, in December, 1870, when this firm was dissolved, on a settlement with Aaron Hart, he then agreed to take the land and personal property thereon at $12,000.00, pay himself a note which he claimed the firm owed him of $2,420.00 and two other debts of the firm, —this one to Ketchum & Hartridge of about $4,000.00, and one to Wilson & Co. or Wilson & Wilkins of about $4,000 00; that he has transferred the note of the firm, of $2,420.00, payable to himself, to O. J. Cottle, without consideration, and that Cottle is seeking to enforce it against the firm; that he has only paid $2,000.00 on the debt due Ketchum & Hartridge, and $900.00 on that due Wilson & Co.; refused to pay the balance of these debts, and conveyed the land to Eldora V. Cottle, that she might claim it for him against these creditors. And complainants show by Hansel Beckwith that Aaron Hart delivered Eldora V. Cottle\'s bond for titles to him, and that she was not known in the transaction by Joseph McMath; that Aaron Hart told him he intended to convey the land to Eldora V....
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