Henderson v. Lott, (No. 5426.)

• Citation: 136 S.E. 403,163 Ga. 326
• Decision Date: 15 December 1926
• Docket Number: (No. 5426.)
• Parties: HENDERSON et al. v. LOTT.
• Court: Supreme Court of Georgia

163 Ga. 326

136 S.E. 403

HENDERSON et al.

v.LOTT.

(No. 5426.)

Supreme Court of Georgia.

Dec. 15, 1926.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Irwin County; K. Eve, Judge.

Action by Y. C. Lott, individually and as administrator of Lucinda Lott, deceased, against William Henderson and others. Judgment for plaintiff, and defendants bring error. Reversed.

Eldridge Cutts, of Miami, Fla., and W. R. Mixon and Philip Newbern, both of Ocilla, for plaintiffs in error.

Rogers & Rogers, of Ocilla, and Milner & Farkas, of Albany, for defendant in error.

HINES, J. [1] 1. A motion is made to dismiss the bill of exceptions in this case, on the ground that Y. C. Lott, as administrator of Lucinda Lott, has not been made a partydefendant to the bill of exceptions, and has not been served with a copy thereof or acknowledged service thereon. Lott was a party plaintiff in the case in the court below, in his individual and representative capacity. He was represented in both capacities by the same attorneys. These attorneys in due time acknowledged due and legal service of the bill of exceptions, waived "all other and further service, " and signed the acknowledgment as "Attys. for Y. C. Lott." Properly construed, this was an acknowledgment of service for Lott in both of the capacities in which he was a party to the suit; counsel in their acknowledgment of service not distinctly and specifically stating that it was made for him in his individual capacity alone. Acts 1911, p. 149; 5 Park's Code, § 6164 (a). Where such acknowledgment of service has been procured, the bill of exceptions can be amended in this court by making any person a party defendant in error to the case who is bound by such service, although such person may not have been named in the bill of exceptions. Acts 1911, pp. 149, 151; 5 Park's Code, § 6164 (b). Plaintiff in error having filed a motion in this court to make Lott, in his representative capacity, a party defendant, the prayer of such petition is granted, and he is hereby made a party defendant in the hill of exceptions, and the motion to dismiss the bill of exceptions is denied.

2. The defendants demurred to the pleadings and entire case of the plaintiff, upon various grounds. The demurrer was overruled, and to this judgment they filed exceptions pendente lite. They assign error upon these exceptions in the bill of exceptions in this case. The only reference made by counsel for plaintiff in error to this matter is a recital in their brief that the plaintiff offered three amendments, which were allowed by the court over the objections of the defendants, and that to the allowance thereof defendants excepted pendente lite, "for the overruling of their demurrer, " which fully appears of record. There is no insistence upon this assignment in the brief of. counsel, and the same has not been otherwise considered and urged by them. They make no argument and cite no authorities in support of this assignment of error, and in no other way insist that this court pass upon the same. This assignment of error, not being insisted upon by counsel for the plaintiff in error, will be treated as abandoned. Steele v. Graves, 160 Ga. 120 (3-a), 127 S. E. 465; Donald v. Groves, 160 Ga. 163 (2), 126 S. E. 583; Mangham v. Cobb, 160 Ga. 182 (10), 127 S. E. 408.

3. On November 15, 1921, Lucinda Lott, for the alleged consideration of $7,000, sold and conveyed by warranty deed the premises in dispute to William Henderson. This deed contained this provision:

"It is understood that a loan for the sum of $2,000 is outstanding against the property herein described, to the Georgia Loan & Trust Company, and, while this deed can only convey the equity of the grantee in said property, that the said grantee is to pay off said loan, and hold the grantor herein harmless to the principal and interest on said loan."

Contemporaneously with the execution of this deed, Mrs. Lott executed and delivered to Henderson her note for the sum of $2,160, dated November 15, 1921, due August 1, 1922, and to secure the payment of her note she pledged to Henderson a note of Maggie Hair for the principal sum of $1,500, with five coupon interest notes of $60 each attached thereto, said principal note falling due September 1, 1923, and being secured by a mortgage or deed to certain described real estate, and also a note of Mr. and Mrs. M. E. Flanders, for $1,500, with five coupon interest notes attached, for $52.50 each, said principal note falling due January 27, 1924, and being secured by a deed to certain described property. Said pledges were contained in said note from Lucinda Lott to William Henderson, and in her note she constituted Henderson, or the holder of her note, her attorney to collect, sell, or otherwise dispose of said collateral notes, either at public or private sale, and without any notice to her, for the purpose of paying her note. On the back of her note there was this stipulation:

"It is understood and agreed that this note shall be void and of no effect, and that the collateral notes herein described shall be returned to Lucinda Lott, upon payment in full of * * * the principal sum due the said Georgia Loan & Trust Company on a loan to the said Lucinda Lott is [of?] $2,000, with interest payable semiannually, the said loan being secured by a loan deed from said Lucinda Lott covering the" premises in dispute, "this day sold by the said Lucinda Lott to William Henderson."

This stipulation was dated November 15, 1921, and was signed by William Henderson. In the deed from Lucinda Lott to the Georgia Loan & Trust Company, referred to above, there was a provision accelerating the maturity of the principal of the loan which said deed was given to secure, if there was default in the payment of any installment of interest by the grantor. This deed also contained a power of sale, which authorized the grantee to sell the premises in dispute upon default of the grantor in the payment of any installment of interest, or of the principal debt, after advertising the same in the manner pointed out in said power. This deed was dated July 1, 1916, and the loan thereby secured matured on August 1, 1921. On July 18, 1921, the payment of this loan was extended from August 1, 1921, to August 1, 1926.

On December 19, 1921, William Henderson turned over to the plaintiff the interest coupon notes attached to the Hair and Flanders notes above referred to, for the purpose of enabling Lucinda Lott to meet the installments ofinterest on the loan of the Georgia Loan & Trust Company as they fell due, and the plaintiff gave to Henderson his receipt for said interest coupons. In this receipt it was recited that the Hair and Flanders notes were held by Henderson as collateral security for a loan of $2,000, made against the Lott "old home place, " by the Georgia Loan & Investment [Trust?] Company to Mrs. Lucinda Lott, and that said notes were to be returned when Lucinda Lott or the plaintiff canceled the loan of said company.

On January 19, 1923, plaintiff applied for guardianship of his mother, on the ground that she was mentally incapable of managing her property, and was appointed such guardian and duly qualified as such. He purposely permitted the interest on the loan due by her to the Georgia Loan & Trust Company to become in default. On February 21, 1923, he paid to said company the principal and interest due on its loan. He had said company to transfer to S. K. Simon the notes representing the principal and interest due on said loan, and the deed securing the payment thereof. He then had Simon to advertise the property for sale on the first Tuesday in April, 1923, under the power of sale embraced in the deed from Lucinda Lott to the loan company. On said day the property was sold by Simon, and was bid in by the Gordy Realty Company. This company was acting for and in behalf of the plaintiff. Simon executed to Gordy Realty Company a deed to the property, in the name of Lucinda Lott, by him as her attorney in fact. Thereupon the Gordy Realty Company conveyed the property to plaintiff.

In these circumstances, the plaintiff claims that he has the legal title to the premises in dispute, and is entitled to recover them with mesne profits from William Henderson. Is this contention sound? In the circumstances above narrated, under which Henderson purchased from Mrs. Lott the premises in dispute, it was incumbent upon Mrs. Lott to keep the interest on her loan from the Georgia Loan & Trust Company paid up, and to discharge the principal of the debt when it became due, or, in default thereof, to have paid to Henderson the amount of her note, $2,160, to reimburse Henderson for all moneys which he had to pay for this purpose. She did not have the right to purposely let the interest become in default, thus accelerating the maturity of the principal of the loan, and permitting the property to be sold in order that she might buy in the property and defeat the title which she had made to her vendee. When the plaintiff obtained from Henderson the interest coupons attached to the notes which his mother had pledged to Henderson to hold him harmless, if he had to pay off this loan, it became his duty to pay the interest that fell due on the loan, and these interest coupons were seemingly sufficient to meet these interest installments as they fell due.

After plaintiff became guardian of his mother, it was likewise his duty, as her representative, to keep the interest on this loan paid up and to maintain the loan in good standing, if he had sufficient funds of hers with which to accomplish this purpose....