Hart v. Respess

CourtSupreme Court of Georgia
Citation14 S.E. 910,89 Ga. 87
PartiesHART v. RESPESS et al.
Decision Date26 March 1892

Syllabus by the Court.

1. Where land levied on under a mortgage fi. fa. is insufficient in value to pay the debt, and, after a claim thereto interposed by a third person has been adjudicated against the claimant, a sale under the levy is prevented by another claim involving the same pretended title, the second claim being interposed by a person to whom the first claimant conveyed pendente lite, a receiver may be appointed to take and hold possession of the land and receive and preserve the rents and profits until the second claim shall be determined, both claimants being insolvent, and having claimed by affidavit in forma pauperis, and without giving bond and security. While the mortgagee has no legal title to the rents and profits, he has an equitable claim upon the same, in so far as they may be needed to discharge so much of the mortgage debt as cannot be realized out of the corpus of the property, the facts of the case indicating that the debtors are insolvent, and the creditor is likely to sustain loss; but, in order to a right adjudication of the matter, the debtors, as well as the claimants, ought to be parties defendant in the suit, and direction is given that they be made parties.

2. There was no abuse of discretion in granting the injunction and appointing a receiver.

3. The evidence not being brought up by brief, as the statute requires, the same is not before this court for consideration, and, consequently, the facts are taken for true as set out by the plaintiffs in their petition.

Error from superior court, Schley county; A. L. MILLER, Judge.

Petition of John R. Respess and Mattie Hart, as administrators against A. H. Hart, for an injunction and the appointment of a receiver. From a judgment for plaintiffs, defendant brings error. Affirmed.

The following is the official report:

The main assignment of error is upon the grant of an injunction and the appointment of a receiver. The defendant further excepts to the overruling of his demurrer to the petition and to the admission and rejection by the judge of certain evidence offered at the hearing. The petition was by J. R Respess and Mattie Hart, as administrators of Isaac Hart, against A. T. Hart. On December 15, 1890, it was presented to Judge FORT, then the judge of the circuit, who certified that he was disqualified from presiding on account of interest. Three days after, it was presented to Judge MILLER, who took jurisdiction, and afterwards heard the case, and made the rulings complained of.

The petition alleged as follows: Into the hands of petitioners, as administrators, came a mortgage given by A. F. Wiggins and J. S. Allums to D. F. Hart, or bearer, dated September 24, 1879, upon the west half of land, lot 173, the south half of lot 174, and the whole of lots 176, 178, 179, and 206, the whole containing 1,012 1/2 acres, more or less, in the thirtieth district of Schley county. The right and title to the mortgage was in Isaac Hart, their intestate, at the time of his death, and nothing had been paid thereon. At the same time he owned and possessed a mortgage note given to him by Thomas and Adam Smith, dated January 4, 1873, for the purchase money of land, lots 275, half of lot 274, and half of lot 147, in the same district and county, covering these lands, not one dollar of which had been paid. Petitioners, as administrators, foreclosed the first-named mortgage in the superior court, and obtained judgment at the October term, 1886. Execution issued, and was levied, November 3, 1886, on all the lands therein described as the property of Wiggins and Allums. To this levy a claim in forma pauperis was interposed by M. E. Hart, then a resident of Sumter county, Ga., and the issue thereon made was tried at the September term, 1888, of Schley superior court, and a verdict and judgment were rendered finding the property subject to the execution. Then the sheriff readvertised the property for sale; whereupon A. T. Hart interposed his claim in forma pauperis, and the issue made thereon is now pending in the superior court. Petitioners also foreclosed the mortgages against the Smiths, and obtained judgment at the March term, 1886. Execution issued, and was levied by the sheriff, June 2, 1886, on all the property embraced in the mortgage as the property of Thomas and Adam Smith. To this levy A. T. Hart interposed his claim in forma pauperis, and the issue made thereon is now pending in the superior court. M. E. Hart was in possession of said lands, from long before the foreclosure of said mortgage until the fall of 1888, receiving the rents, issues, and profits of the same, of the annual value of $1,200, under some pretended claim of right. In that fall she abandoned the possession, removing to California, and leaving in possession A. T. Hart, who has received the rents and profits since that time. M. E. Hart did not file her claim in good faith, but for the purpose of holding the possession. She continued the claim case from term to term as long as possible, that she might hold and cultivate the lands, and receive the rents and profits arising from them. A. T. Hart does not claim said land in good faith as the owner, but is seeking to hold possession under a pretended deed from M. E. Hart, who never had any title to the premises, so that he may, as long as possible, receive the rents. At the trial of the claim case of M. E. Hart, A. T. Hart, as a witness, swore that he was acting as agent and the representative of M. E. Hart, and that he had no interest in said lands except as her agent; but at that very time he had in his possession a deed from M. E. Hart to himself, which was not recorded until afterwards, and under which he is now claiming title. After the issue was determined against M. E. Hart, she and A. T. Hart colluded and confederated, by the making of this deed, to further continue and delay the collection of the claims of petitioners. Neither of them have ever, in good faith, claimed the right and title to the premises, but have held possession in fraud of petitioners' rights. A. T. Hart has no title other than such as he claims under the deed from M. E. Hart, whose title has been adjudicated in the superior court as to 1,012 1/2 acres of the land; and he knew when he accepted the deed that she had no title; and that her claim was pretended and fraudulent. The two claims of petitioners now amount to nearly $20,000, and interest on them is increasing. The property on which they are liens is worth not over $7,000, and is constantly being depreciated in value by cultivating and wearing out the land, by the houses and fencing going to ruin, and no improvements being placed thereon, and by the cutting and felling of timber by A. T. Hart and his tenants. If the property were sold, it would not pay the amount due on the liens. The rents and profits, of the value of $1,200, or other large sums, should, in equity, be appropriated to the payment of petitioners' claim, the corpus being wholly insufficient. M. E. Hart is a non-resident, and she and A. T. Hart are utterly insolvent, and would be unable to respond to an action for damages from the interposition of a frivolous claim. Waiving discovery, petitioners pray for injunction restraining A. T. Hart and his agents, tenants, and employes from cutting or felling timber on the premises, or from otherwise committing waste thereon, and restraining him from conveying or disposing of any of the lands; that the claim cases now pending be merged into this litigation, and the rights of the parties be settled under decree; that a receiver be appointed to take charge of and rent out the premises, and hold the rents subject to the court's order; for decree that the lands are subject to petitioners' liens, and for order that they be sold, and the proceeds of sale and the rents be applied thereto, etc.

The demurrer was on the grounds that there is no equity in the petition; that it shows that litigation is already pending regarding the subject-matter; that the allegations are too vague and uncertain for a legal judgment; that it is directed alone against A. T. Hart, but charges such fraud and collusion, and such interest in the lands, as would necessarily make Mary E. Hart a party; and that petitioners have a clear common-law remedy. There was also a plea setting up the pendency of the claims of A. T. Hart. A. T. Hart answered: He was no party to the foreclosure proceeding, was not notified of it, and is not bound by it. The mortgage and notes given to D. F. Hart had long previously been canceled annulled, and abandoned, and at the time of foreclosure had no legal force or effect, for, after D. F. Hart had taken the mortgage and notes, and had put the mortgagors in possession, the lands had been sold by the United States marshal for the southern district of Georgia under a valid, subsisting, and unpaid execution in favor of S. J. Armstrong against Isaac Hart, complainant's intestate, D. F. Hart, and others, issued out of the circuit court of the United States for the southern district of Gerogia, as the property of D. F. Hart, and purchased at that sale by Mary E. Hart; and, under that sale, on July 4, 1882, Allums and Wiggins were turned out of...

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17 cases
  • Prudential Ins. Co. of America v. Byrd
    • United States
    • Supreme Court of Georgia
    • 17 Julio 1939
    ......LaGrange Banking & Trust Co., 166 Ga. 675, 144 S.E. 267; Gunby v. Thompson, 56 Ga. 316, 317; Crockett v. Wilson,. 184 Ga. 539, 192 S.E. 19; Hart v. Respess, 89 Ga. 87, 14 S.E. 910. The appointment of the receiver was reversed. by this court (Byrd v. Prudential Insurance Co., 182. Ga. 800, ......
  • Prudential Ins. Co. Of Am. v. Byrd, s. 12701, 12737.
    • United States
    • Supreme Court of Georgia
    • 17 Julio 1939
    ......675, 144 S.E. 267; Gunby v. Thompson, 56 Ga. 316, 317; Crockett v. Wilson, 184 Ga. 539, 192 S.E. 19; Hart v. Respess, 89 Ga. 87, 14 S.E. . 910. The appointment of the receiver was reversed by this court (Byrd v. Prudential Insurance Co., 182 Ga. 800, ......
  • Pope v. United States Fidelity & Guaranty Co.
    • United States
    • Supreme Court of Georgia
    • 15 Abril 1942
    ...v. Wilson, 184 Ga. 539, 192 S.E. 19; Corbly v. Wright, 186 Ga. 782, 199 S.E. 168; Braswell v. Palmer, 191 Ga. 262, 11 S.E.2d 889. In Hart v. Respess, supra, the levy was made under a fi. fa., and hence the plaintiff in the equity proceeding had a special lien upon the property involved. It ......
  • Pope v. United States Fid. & Guar. Co, 14072.
    • United States
    • Supreme Court of Georgia
    • 15 Abril 1942
    ...to support the judgment was produced on the trial, and that the judgment is sufficiently sustained by the evidence. Hart v. Respess, 89 Ga. 87(3), 14 S.E. 910; Moss v. Moss, 141 Ga. 769, 82 S.E. 136; Schwarz v. Monsees, 142 Ga. 734, 83 S.E. 670; Kennedy v. Rogers, 145 Ga. 292, 88 S.E. 974; ......
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