Hardin v. Douglas, (No. 6418.)

• Decision Date: 28 February 1929
• Docket Number: (No. 6418.)
• Citation: 168 Ga. 213,147 S.E. 506
• Parties: HARDIN v. DOUGLAS et al.
• Court: Georgia Supreme Court

168 Ga. 213

147 S.E. 506

HARDIN

v.DOUGLAS et al.

(No. 6418.)

Supreme Court of Georgia.

Feb. 28, 1929.

(Syllabus by the Court.)

Russell, C. J., dissenting.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Action by Mrs. Kate G. Hardin, administratrix of the estate of Ann E. Gramling, against E. Lee Douglas and others. Judgment for defendants, plaintiff's motion for new trial was overruled, and plaintiff brings error. Affirmed.

T. B. Higdon and Little, Powell, Smith & Goldstein, all of Atlanta, for plaintiff in error.

J. K. Jordan, of Atlanta, for defendants in error.

HILL, J. Mrs. Kate G. Hardin, as administratrix on the estate of Mrs. Ann E. Gram-ling, brought ejectment against E. Lee Douglas as the real defendant, and certain tenants in possession, to recover two lots of land in the city of Atlanta, one of which will be hereafter referred to as the Simpson street property, and the other the West Peachtree street property. Douglas answered, setting up title to the property in controversy by virtue of a deed executed to him by Mrs. Gram-ling, plaintiff's intestate, on June 6, 1911. The plaintiff contended that this deed was void, for the reason that it was made as security for a debt owing by Mrs. Gramling to the defendant, and that the debt was usurious, in that more than the legal rate of interest was charged and reserved by the creditor, E. L. Douglas, against Mrs. Gramling; and, further, that the issue on the question of the debt, being an usurious one, had been actually litigated and determined between Mrs. Gramling and her privies, in a suit brought in the superior court of Fulton county, wherein E. L. Douglas was plaintiff and Mrs. Gramling originally was the defendant. On account of the death of Mrs. Gramling, her testatrix was made party defendant, and in that case the issue was made and determined, and on September 29, 1916, a general verdict was rendered on said issue in favor of Mrs. Hardin, and a general judgment founded thereon was accordingly entered; wherefore it is contended that Douglas is estopped from asserting that the deed under which he claims title is valid.

The defendant denied all of the allegations of the plaintiff's petition; and set up that on or after September 1, 1911, and before the filing of the present suit, he made certain improvements upon the Simpson street property in the nature of repainting, repairing, renewing all plumbing, carpenter work, installing water heaters, and entirely renovating the houses and increasing the value thereof in the sum of $1,200. He also alleged as to the Simpson street property that on June 6, 1911, he purchased the property from plaintiff's intestate and paid the price agreed upon. As to the West Peachtree street property, he says that he is still in bona fide possession; that the lot was vacant and unimproved until on or about September 1, 1917, when he completed improvements on it consisting of a brick building permanent in its character, of the value of $20,000; that before the improvements the lot brought in no rent, but was a source of expense; and that since said improvements the rental value of same has been $225 per month gross. The defendant also contends that he received two warranty deeds in fee simple to the property in controversy from Mrs. Gramling, plaintiff's intestate, and at the same time gave an option whereby he agreed to sell this property to Mrs. Gramling and Mrs. Hardin on or before September 1 following, for the amount paid for the property, plus $1,200. In the option it was stipulated: "It is the intention of the parties that the above deeds representan actual bona fide sale, and that it is not to be considered as a loan. The said parties of the first part [Mrs. Gramling and Mrs. Hardin] hereby waive and renounce for themselves, their executors, administrators, heirs and assigns, all right, title, and interest in and to the property as described, subject only to the above option, of which time is made the essence of the contract." This option was signed by Mrs. Gramling, Mrs. Hardin, and Douglas, and was attested by Mrs. Gramling's attorney at law, and by a notary public. Upon the trial the jury returned a verdict for the defendant. The plaintiff filed a motion for new trial, which was overruled, and she excepted. Other facts appear hereinafter.

1. The motion for new trial contains fourteen special grounds, nine of which complain of certain excerpts from the charge of the court to the jury, four of refusals to charge, and one of the admission of certain documentary evidence. Ground 6 is as follows: "Because as movant contends, the court erred in charging the jury: 'The court instructs you that a determination of a subject-matter in a former suit between the same parties, by a court of competent jurisdiction, should be an end to litigation. A judgment in a court of competent jurisdiction is conclusive between the same parties and their privies, as to all matters actually made and determined which were in fact and necessarily decided by the court. The court instructs you that if the judgment in a former case would have been reached without the point in issue in the latter case being directly or necessarily passed upon, the judgment in the former case would not be conclusive on that point. The real question is, was the identical issue involved, and was it material, or could judgment have been reached without directly and necessarily passing upon the question? The court instructs you that parol evidence is permissible to show that a matter apparently covered by the judgment of a court was really not passed on by the court, and that parol evidence is permissible to show just what issue was passed on by the court. And the court instructs you that if you find from the evidence in this case that Douglas hitherto brought suit against Mrs. Gramling, which was defended by Mrs. Hardin as administratrix, and that the issue was raised and litigated between said parties in that case as to whether a deed made by Mrs. Gramling to Douglas in June, 1911, was void or not, and on that issue the jury found in favor of Mrs. Gramling, or her administratrix, and judgment was accordingly rendered thereon, and if that question was actually decided by that jury, necessarily decided, then, in that event, it would be the duty of the jury in this case to consider such judgment as absolute and binding on you, and you would not be authorized to find that said (?) was good or valid irrespective of what you gentlemen trying this case might yourselves believe as to that issue. In other words, if that question was passed upon in the other case, under the instructions that I am just giving you, this court and this jury would be bound by that decision in the other case.' Said charge being error because it instructed the jury that in order for an estoppel by judgment to operate, it was necessary that the point in question not only was actually decided in the previous action between the parties, but also must have been necessarily decided; whereas, under the law, even though there were many issues raised in the former action, if the point in controversy was actually decided, an estoppel by judgment as to that particular point or issue is raised under the law."

The general rule is that, in order for a former judgment to bind parties in a subsequent suit by way of estoppel as to any fact, it must appear from the judgment in the former suit, or by extrinsic evidence, that such question of fact was within the issues of the former action, and was actually litigated and determined in such action. But, if such judgment, and extrinsic evidence leave it as a mere matter of conjecture as to what questions of fact were litigated and determined in the former action, the judgment is not an estoppel. Draper v. Medlock, 122 Ga. 234, 50 S. E. 113, 69 L. R. A. 483, 2 Ann. Cas. 650; Auglr v. Ryan, 63 Minn. 373, 65 N. W. 640.

It is true that one of plaintiff's witnesses testified that the only issue in the former case was whether the transaction with reference to the property was a loan or a sale. But Douglas contended that there were several issues in that case, among them being an issue as to whether or not there were any funds in the sheriff's hands not consumed by claims of higher dignity; whether or not Douglas had paid the taxes or any of them at the time of the institution of the suit; whether or not he had agreed to pay these taxes at the time he received Mrs. Gramling's deed; whether the suit could be maintained to recover a judgment for taxes that automatically would go to judgment without suit; whether each lot was or was not liable for its own taxes; whether or not these taxes were actually assessed and unpaid; whether or not his payment of these taxes were voluntary; whether or not a suit for breach of warranty can be maintained for the voluntary payment of taxes, if she was not ousted from the premises. It did not appear upon what issue the verdict in favor of the defendant was founded; it being generally for the defendant. It was incumbent upon the plaintiff, in order to establish estoppel by judgment, to prove by extrinsic evidence that it was founded upon facts in issue on the trial.

Let us see what the issues in the formerease were. The action was brought in May, 1923, by E. L. Douglas against Mrs. Gram-ling, C. W. Mangum, sheriff, and J. M. Fuller, marshal of the city of Atlanta, and was continued against Mrs. Gramling's administratrix, Mrs. Hardin. It was tried, and terminated in a verdict and judgment in favor of the defendant at the September term, 1916. The petition in that case alleged that on June 6, 1911, Mrs. Anna E. Gramling had made to Douglas certain warranty deeds conveying the premises in dispute (both of which deeds were introduced in evidence in the present case); that the city of Atlanta had issued against Mrs. Gramling an execution for taxes, including the taxes not only On these two pieces of property, but also on another...