Groce v. Jno. M. Field

• Decision Date: 28 February 1853
• Docket Number: No. 3.,3.
• Court: Georgia Supreme Court
• Parties: Lewis Groce, plaintiff in error. vs. Jno. M. Field,trustee, &c. et al., defendants in error.

13 Ga. 24

Lewis Groce, plaintiff in error. vs. Jno. M. Field, trustee, &c. et al., defendants in error.

No. 3.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1853.

In Equity, in Bibb Superior Court. Decision on demurrer, by Judge Powers. May Term, 1852.

The bill charges that in 183—, Ambrose Baker was appointed by the Court of Ordinary of Bibb County, administrator of Solomon Groce, who departed this life in 183—. Baker, on the 29th of October, 1838, commenced an action of ejectment in the Superior Court of said County, for the recovery of an acre of land, in the north-east corner of a ten acre lot, No. 4.on the Macon reserve, on the east side of the Ocmulgee river, against Louisa B. Durrett, the tenant in possession. Pending the action, John M. Fields, as trustee of Louisa B. Durrett, filed a bill for discovery, relief, and injunction, and to which bill Baber was made a party defendant; together with. Ann Groce, Lewis J. Groce, and others, as the heirs of Solomon Groce. This bill prayed for a perpetual injunction against Baber, as administrator, from further proceeding in his action of ejectment, and to compel him or the other defendants to execute title to the premises in dispute, and to deliver up the grant to the said lot No. 4. Pending the bill, to-wit: in September, 1841, Baber having been appointed Charge by the Government of the United States to the Court of Sardinia, he left this country on his said mission, having previously been discharged from said administration by the Court of Ordinary of said County of Bibb, and one Thomas A. Brown having been appointed administrator of said estate.

In December, 1842, a trial was had on said bill, Brown not having been made a party, and a decree rendered, enjoining the action of ejectment and requiring the defendants to execute title to complainant, as trustee, &c. for said lot of land, which title was executed in 1843, by the defendants other than Baber, under an order of the Supreme Court. Leave of reference is asked, to this bill. The bill further charges that Louisa B. Durrett, never had or made any claim to any portion of said lot, other than the acre sued for in the original action of ejectment, and that complainant at the time of the rendition of said decree, had been in possession of the remainder of said ten acres for ten years, and that he refused and still refuses to deliver possession to the said Louisa B.

The bill further states, that upon his refusal to give possession under said decree, that John M. Fields, as trustee for the said Louisa B. commenced his action of ejectment against complainant for the recovery of the said ten acres of land; that said action is now pending in the Superior Court of said County, the said Louisa B. having departed this life, and one Susan G. Cook, named as her executrix.

The bill prays that the action of ejectment may be enjoined; that the order and decree of the Court under the first bill, may be set aside and rendered void; and that the deed executed by the heirs of Solomon Groce to John M. Field as trustee, may be delivered up to be cancelled.

To this bill a demurrer was filed, on the grounds,

1st. Want of Equity.

2d. That the original bill and proceedings thereon were not attached as an exhibit.

3d. Because the discharge of Baber should have been pleaded in the action of ejectment.

The Court sustained the demurrer, and dismissed the bill, and this decision is brought up for review.

Poe & Nisbet, for plaintiff' in error.

Hardeman, for defendant in error.

By the Court —Nisbet, J., delivering the opinion.

In considering this cause, we have found that Ambrose Baber. administrator upon the estate of Solomon Groce, deceased, brought an action of ejectment against Louisa B. Durrett, tenant, for one acre of land, lying in the north-east corner of ten acre lot No. 4, of the Macon reserve, east of the Ocmulgee river, upon a grant from the State for that lot, issued to his intestate. Pending that action, Field, the trustee of Mrs. Durrett, filed the original bill, making Baber the administrator of Groce, and the heirs of said Groce, among them Solomon Groce, who the bill charges to be a minor and without a guardian, parties defendants. This bill setting up that the lot of land No. 4, had been transferred to Solomon Groce, deceased, the intestate of Baber, as security for certain debts and liabilities incurred by and due to him by one D. Durrett. which liabilities and debts had been discharged and cancelled, and that the same lot had been conveyed by D. Durrett in trust for the use of Mrs. Durrett, and that the grant had been collusively taken out in the name of Groce, prays that theaction of ejectment be enjoined; that the grant be cancelled, and that the premises in dispute in the action of ejectment, be conveyed by the administrator Baber, or the heirs of his intestate, to the complainant for the use of Mrs. Durrett. Baber the administrator, and one of the heirs defendants, to wit, Lewis Groce, and he only, answered the bill. No order was passed to take the bill as confessed by the other defendants, and none asked for. All the defendants were served, including Solomon Groce, the minor, but no guardian al litem was appointed for him nor did he appear by a regular guardian. In this state of the pleadings, the cause was brought to a hearing, and the Jury decreed, "that the plaintiff in the action of ejectment be perpetually enjoined, and that he proceed no further therein; and that the said administrator of Solomon Groce, deceased, or the heirs and distributees of said deceased, convey to the complainant, as trustee of Louisa Durrett, the said premises in dispute, and that the grant for said lot of land, be delivered to the complainant." The judgment of the Court was entered up in pursuance of this finding, and is dated in December, 1842. At the May Term, 1843, an order was passed by the Chancellor, reciting the above decree, and that the defendants had neglected and refused to comply with it, and directing, that the Sheriff arrest the defendants, the heirs and distributees of Solomon Groce, deceased, including the minor Solomon Groce, and confine them in the common jail of the County until they comply with the decree, by making a conveyance of said premises to the complainant in the bill, it being lot No. 4 in the public reserve at Macon; on the east side of the Ocmulgee river, containing ten acres. In obedience to this order, the conveyance was made by the defendants to the trustee of Mrs. Durrett, of the lot No. 4, containing ten acres; and upon this deed, he instituted ejectment against Lewis Groce, who was in possession, for the ten acre lot No. 4. Pending this action, the bill of review was brought by Lewis Groce and T. A. Brown, administrators of Solomon Groce, deceased, setting forth the foregoing facts, and in addition to them, charging, that pending the original bill, Baber the administrator.had been discharged from the administration, by a judgment of the Ordinary, and T. A. Brown had been appointed administrator upon the estate of Solomon Groce. It charges also that the order of May, 1843, directing the arrest and imprisonment of the defendants to that bill until they should comply with the decree, is illegal and void, because it does not conform to, but transcends the decree, and therefore the conveyance of the lot of land No. 4, made under its coercion is void; that there is error in the decree rendered on the original bill, because it was awarded against the defendants, except Baber and Lewis Groce, without their answer and without an order to take the bill as confessed; because it was awarded against Baber, who had been discharged from the administration by a judgment of the Court of Ordinary, and when another representative had been duly appointed; and because it was rendered against Solomon Groce, a minor, without appearance by a guardian ad litem. The prayer is, that the decree and order be reviewed and reversed; that the deed executed to the trustee of Mrs. Durrett be delivered up to be cancelled, and that the action of ejectment be perpetually enjoined. Upon demurrer, the Court below dismissed it for want of equity, and upon that ruling we have the questions made in the assignment.

A chancellor cannot fail to see at a glance, that the proceedings on the bill against Baber and the heirs of Solomon Groce, deceased, are characterised by very great irregularity. The record of the decree on that bill abounds in errors— errors so transparent that it is matter of wonder how they could have occurred under the eye of the able Judge who at the time presided over the Circuit Court. It is error to decree against a defendant who has not appeared and answered, without an order to take the bill pro confesso. In England the preliminary order is necessary. The cause is not ready to be set down for a hearing until it is taken. It is the order (which is in character of an interlocutory decree) upon which the issue in such case is joined. Without it the defaulting defendant cannot be considered as confessing to the allegationsof the complainant. It is indispensable to any action on the bill that he be adjudged to be in default, and in consequence of that default, that he be adjudged to have confessed the plaintiff\'s case. It is a rule of universal application in Courts of justice, that a judgment cannot exist by intendment. It must appear. If it does not appear, it therefore is not. Records of judicial action, are the evidence of rights protected, and of wrongs redressed. They must be full and complete. It is not pretended, however, that there was any order to take the bill for confessed in this case. Looseness in judicial proceedings is the vice of American Courts, and with my consent we will make no further progress in that direction than we are constrained to make by the commands of law. I do not intend to be understood as admitting that a decree against a defendant in Equity, who has failed to answer, without...