Goodwynne v. Bellerby

• Decision Date: 09 January 1903
• Citation: 43 S.E. 275,116 Ga. 901
• Parties: GOODWYNNE et al. v. BELLERBY.
• Court: Georgia Supreme Court

43 S.E. 275

116 Ga. 901

GOODWYNNE et al. v. BELLERBY.

Supreme Court of Georgia

January 9, 1903

Syllabus by the Court.

1. Where an administrator obtains an order from the ordinary to sell lands of his intestate, and at the sale a person buys and gives his note for the purchase money, and, after his failure to pay the note at maturity, the administrator brings suit thereon, but dies pending the suit, and an administrator de bonis non is appointed and made a party to the suit, and obtains judgment therein, such administrator de bonis non has power and authority, when the judgment is satisfied, to make a deed to the lands without any further order from the ordinary or any other court. The prosecution of such a suit and collecting the judgment therein is a partial administration of the assets of the estate of the intestate.

2. The delivery of the deed to the land and its acceptance by the purchaser sufficiently appears, relatively, at least, to the rights of one from whom the purchaser has borrowed money when it is shown that the deed was recorded; that the purchaser applied for a loan of money, and offered to secure it by a deed to the land, stating that he had acquired it by purchase, and had fully paid for it; that this application was, by the agents of the purchaser, sent to the lender, with an abstract of title attached, showing the execution and record of this deed; that the loan was made on the faith of the application and abstract, and the money accepted by the purchaser; and that the recording fee was paid out of the money loaned.

3. A general judgment obtained by the administrator de bonis non against the purchaser for a certain sum of money, which had been satisfied long prior to the execution of the deed by the purchaser as security for a loan, was no notice to the lender that the purchaser's children had any interest in the land. Even if it had been the duty of the lender to examine the pleadings and the verdict upon which the judgment was rendered, they were not sufficient to constitute notice that the children had any interest in the land now in dispute.

4. The evidence is conclusive that the lender was an innocent purchaser without notice, and the brokers who obtained the loan were, under the law and the evidence, the agents of the borrower, and not of the lender; consequently notice to them of the secret equity of the children was not notice to the lender.

5. Where minor children reside with their father, who is in possession of land to which he has the legal title, the children's residence on the land is not sufficient to put a purchaser from the father upon notice or inquiry as to any secret equity they may have therein. When they become of age and leave the premises, and reside for several years upon other lands, and, a few days before the execution of the deed by the father one of them returns to the land, claims a right therein, and moves upon the land, the father continuing in possession and apparent control, such residence is not notice of the equity of the children.

6. The plaintiffs in error having no interest in the land as against the defendant in error. but being in possession of the land making crops thereon, and being insolvent, there was no error in appointing a receiver.

7. There being a strong equity in the petition, and equity having assumed jurisdiction, the court may enjoin the trial of a claim case between the same parties and relating to the same land, so that the whole controversy may be tried in one proceeding in the court of equity. Equity, when it assumes jurisdiction, will not parcel out the case, but will retain it for complete determination.

8. Under the facts disclosed by the record, there was no error in refusing to allow the defendants to give a damage bond to the plaintiff in lieu of the appointment of a receiver.

Error from superior court, Monroe county; E. J. Reagan, Judge.

Action by John Bellerby against O. E. Goodwynne and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Hardeman Davis, Turner & Jones, and Persons & Persons, for plaintiffs in error.

Cabainss & Willingham and Hall & Wimberly, for defendant in error.

SIMMONS C.J.

In the year 1872 John B. Ogletree, of the county of Monroe, died intestate. David B. Ogletree was appointed his administrator. He obtained an order from the court of ordinary in 1873, to sell the property of his intestate, both real and personal. At the sale C. O. Goodwynne became the purchaser of certain land. Apparently this land was sold upon credit, as Goodwynne gave his note for the purchase money. This note was not paid at maturity, and the administrator brought a suit thereon in the superior court of Monroe county. Goodwynne filed a petition in equity to enjoin the action against him by the administrator. He alleged that he had married a daughter of John B. Ogletree, and that she was one of the distributees of his estate; that the administrator was, on this account, indebted to her in a sum much larger than the amount of the note sued on; and that for that reason the administrator should not be allowed to recover against petitioner when the estate owed his wife, the land having been purchased on account of the fact that his wife was a distributee of the estate. Goodwynne's wife died, and he was appointed guardian of his four minor children. He filed an amendment to his petition, in which he alleged that he had purchased the land for the use of himself and his minor children, and prayed that his and their distributive shares be credited on the note. He made the other distributees parties, and prayed that an accounting and settlement be had with them all. The administrator filed an answer to this petition, but died before the trial. Sharp was appointed administrator de bonis non, and made party plaintiff to the common-law suit and party defendant in the equitable proceeding. On the trial of these cases the jury allowed Goodwynne credit on the note of certain sums due as a distributive share of the estate of John B. Ogletree, and a one-sixth part of certain sums in the hands of the administrator de bonis non. The verdict also found against Goodwynne for a certain amount, and found that he was entitled to a one-sixth interest in certain notes and accounts in the hands of the administrator de bonis non. Upon this verdict a general judgment for $4,599.43 was entered up against Goodwynne in favor of Sharp, administrator de bonis non. In 1876 this verdict and judgment were recorded on the minutes of the court. The judgment was paid off by Goodwynne, or settled out of the moneys received from the estate. The record is silent as to which. No deed was made to Goodwynne for several years, when, on the request of an attorney, Sharp, after some hesitation, executed a deed to Goodwynne. This deed was placed on record in 1885. Subsequently Goodwynne obtained a loan of $5,000 from James H. Tallman, giving as security a mortgage upon the land purchased by him at the administrator's sale. Being unable to pay this loan at maturity, Goodwynne took up and canceled the mortgage given to Tallman by borrowing $5,000 from Bellerby, the defendant in error in the present case, giving Bellerby a security deed to the land to secure the payment of the loan. This latter loan having become due under its terms, Bellerby commenced his action against Goodwynne to recover a judgment for the amount of the loan, with interest, and prayed a special lien on the land described in the deed. After long litigation, Bellerby obtained a general judgment against Goodwynne for the amount sued for, with a special lien upon the land. Execution was issued, and levied upon the land, and the children of Goodwynne filed a claim to the land, setting up at first that a one-half interest in the land belonged to them as heirs of their mother's inherited portion of their grandfather's estate. At the hearing this claim was amended by setting up that they claimed a one-half interest in the land by reason of the fact that money which belonged to them, coming from their grandfather's estate, had been used to pay for the land, and that their claim was superior to that of Bellerby. Upon the filing of this amendment the case was continued, and before the next term of court Bellerby filed an equitable petition praying for a receiver, and for an injunction against the claimants, on the ground that they were trespassers, and had no interest in the land superior to his judgment; that the land was going to waste and depreciating in value; that they were making crops on it and selling them; and that they were insolvent. The claimants, the defendants in this petition, answered, and both sides submitted many affidavits and certain documentary evidence. After a full hearing, the court granted the injunction and appointed a receiver. The defendants excepted.

1. The first exception made is as to the admissibility of the deed made by Sharp, the administrator de bonis non, to Goodwynne. The plaintiffs in error contended that Sharp had no power or authority, as administrator de bonis non, to execute this deed, and that it was, therefore, void, and gave no title to Goodwynne, under whom Bellerby claims. The theory of this position is that when David B. Ogletree, the first administrator, sold the land, it was thereby fully administered, and when he took a note for the purchase money such note was due to him personally, and not as administrator; that, the land having been administered by the first administrator, and the administrator de bonis non having power only to administer the unadministered assets, the administrator de bonis non had no power to execute a deed to this land. To sustain this contention the cases of Thomas v. Hardwick, 1 Ga. 80, and Oglesby v. Gilmore, 5 Ga. 56, were...