Lankford v. Holton

• Decision Date: 13 January 1943
• Docket Number: 14333,14334,14335,14336.
• Citation: 24 S.E.2d 292,195 Ga. 317
• Parties: LANKFORD et al. v. HOLTON et al. HOLTON et al. v. LANKFORD et al. LANKFORD et al. v. HOLTON et al. HOLTON et al. v. LANKFORD et al.
• Court: Georgia Supreme Court

24 S.E.2d 292

195 Ga. 317

LANKFORD et al. v. HOLTON et al.

HOLTON et al. v. LANKFORD et al.

LANKFORD et al. v. HOLTON et al.

HOLTON et al. v. LANKFORD et al.

Nos. 14333, 14334, 14335, 14336.

Supreme Court of Georgia

January 13, 1943

Rehearing Denied Feb. 11, 1943.

Syllabus by the Court.

Nos 14333, 14334:

1. The defendants' demurrer to the plaintiffs' amendment, which set out the written agreement between Mrs Holton and Mrs. Mattie L. Lankford, was properly overruled.

2. The order of the court setting aside the order approving the findings of the examiner and recommitting the case was in accordance with the decision in Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304, and was not error.

3. As there was no ruling on the traverse, there was no basis for exception.

4. There was no error in rejecting the defendants' amendment to their exceptions of fact.

5. Where an examiner or auditor fails to make certain findings which one of the parties thinks should have been made, a motion to recommit for such purpose, and not an exception to such failure, is the proper procedure.

6. The evidence before the examiner on the last hearing authorized him to find, and the court to confirm his findings of fact and law, that Mrs. Mattie L. Lankford was estopped from attacking the B. H. Tanner security deed for usury.

7. The evidence on the last hearing authorized the examiner to find and the court to confirm that Mrs. Mattie L. Lankford was estopped from claiming prescriptive title to the land.

Nos. 14335, 14336:

The evidence in this case does not support the examiner's finding of equitable title to 3 1/2 tracts in Mrs. Mattie L. Lankford. Exceptions of law to this finding should have been sustained, and the court erred in approving this finding and entering decrees to this effect. Direction is given as set forth in the opinion. There was no error in the decree registering title to a half undivided interest in tract number 4 in the named heirs of H. L. Lankford, Holton v. Lankford, 187 Ga. 94, 200 S.E. 243.

Powell, Goldstein, Frazer & Murphy, of Atlanta, and W. C. Lankford, of Washington, D. C., for plaintiffs in error.

R. A. Moore, B. G. O'Berry, Jr., and L. L. Forchheimer, all of Douglas, and Memory & Memory, of Blackshear, for defendants in error.

REID, Chief Justice, being disqualified, Judge A. L. ETHERIDGE, of the Atlanta judicial circuit, was designated for these cases.

ETHERIDGE Judge.

On September 15, 1928, Mrs. Rilza T. Holton filed a petition to register four tracts of land under provisions of the Land-Registration Act of 1917, Laws 1917, p. 108, Code, § 60-101 et seq., she claiming title by reason of seven years' adverse possession under color of certain deeds set out in her petition; the color of title being claimed by virtue of a security deed executed by W. C. Lankford, dated November 7, 1911, to B. H. Tanner, to secure a debt of $15,000, due January 1, 1917, said deed by assignments being later transferred to Mrs. Holton; and also by virtue of a sheriff's deed made in 1923 to Mrs. Holton, reciting the judgment, levy, and sale of the property in 1923 under a suit by Mrs. Holton against W. C. Lankford to foreclose the security deed. Mrs. Mattie L. Lankford, wife of W. C. Lankford, the maker of the security deed, on October 31, 1928, filed her answer in this proceeding; and by amendment filed February 27, 1937, she made an attack on the security deed from her husband to B. H. Tanner, as being usurious and void, and claimed the right to registration of her title by virtue of a deed made in 1915, from W. C. Lankford to J. S. Lott, and a conveyance from Lott to her under a bond for title in 1920, on the tracts in question, except an undivided half interest in tract No. 4, and claimed adverse possession for seven years under these instruments. H. L. Lankford, a brother of W. C. Lankford, and after his death his heirs and administrator, filed similar defenses and an additional defense based on suretyship, and claimed title in the H. L. Lankford heirs to an undivided half interest in tract No. 4, under deed made in 1913 by W. C. Lankford to H. L. Lankford.

After general demurrers to the defendants' answers and amendments were overruled, the case was referred to an examiner; and after he made his report finding generally in favor of the plaintiff's contentions, the defendants, Mrs. Mattie L. Lankford and the heirs of H. L. Lankford, filed exceptions of law and fact to the report of the examiner. These exceptions were overruled by the court, the report of the examiner confirmed, and final decrees were entered in favor of Mrs. Holton, subject to rights of certain intervenors claiming under instruments executed by Mrs. Holton to them between 1928 and 1934. Exceptions to the final decrees were filed by the defendants, and on October 15, 1938, this court reversed the ruling of the superior court on the main bill of exceptions, and affirmed the ruling on the cross-bill of exceptions. Lankford v. Holton, 187 Ga. 94, 200 N.E. 243. This court held that the evidence before the examiner demanded the finding, first, that the security deed from W. C. Lankford to B. H. Tanner was infected with usury, and the sheriff's deed executed thereunder on the foreclosure afforded no basis for the registration of title in the name of Mrs. Holton, transferee of the security deed and purchaser under the foreclosure; and second, that Mrs. Mattie L. Lankford, under the evidence, was entitled to have title to three and one-half tracts of land registered in her name, by reason of the adverse possession of more than seven years under the deed to said tracts made by W. C. Lankford to J. S. Lott, and by Lott, in turn, under bond for title, to Mrs. Lankford, in 1920; third, that the heirs of H. L. Lankford were entitled to have a half undivided interest in tract No. 4 registered in their names, by reason of the adverse possession under color of title since 1913. This court, without giving any specific direction, ruled that it was error for the trial court to overrule the exceptions of the defendants to the report of the examiner, and erred in rendering a final decree in favor of the plaintiff, and reversed the judgment.

Upon the return of the remittitur to the lower court, the plaintiff offered two amendments to her petition, the basis of said amendments being, first, upon the ground of newly discovered evidence as to usury, and in the second amendment claiming that Mrs. W. C. Lankford, by reason of certain written agreements made in October, 1923, was estopped to plead usury. The amendments were disallowed, and a decree was entered, registering the title of said tracts in the defendants. On November 16, 1939, this court held that upon the return of this case to the lower court after its first appearance here, in the absence of any specific direction given therein, it was the duty of the trial court to recommit the case to the examiner 'for a de novo investigation, with the right to either party to offer amendments and introduce evidence as upon an original hearing,' and that the trial court was without authority to set aside the findings of the examiner and enter a final decree upon the report registering title in favor of the defendants, in the absence of special findings of fact and law by the examiner. Holton v. Lankford, 189 Ga. 506, 529, 6 S.E.2d 304.

Upon the return of this case to the trial court, the judge passed an order recommitting the case to the examiner, with direction and authority to hear anew all matters pertaining to the case. On October 8, 1940, the case came on again to be heard before the examiner; and after certain amendments were allowed and demurrers had been offered by both sides, and after hearing the evidence, the examiner, on October 1, 1941, filed his final report. The examiner found as a matter of fact and law that H. L. Lankford acquired a good prescriptive title to one half undivided interest in tract No. 4, under the deed executed to him by W. C. Lankford on December 2, 1913; and that by reason of certain agreements between Mrs. Holton and Mrs. Lankford, on October 27, 1923, entered into while suit of Mrs. Holton to foreclose the debt secured by the loan deed from W. C. Lankford to B. H. Tanner was pending, Mrs. Lankford was estopped from claiming prescriptive title to the remaining 3 1/2 tracts; and the examiner found that an equitable title to tracts 1, 2, and 3, and a one half undivided interest in tract No. 4, vested in Mrs. Lankford, and the legal title to these named tracts was vested in Mrs. Holton, and those claiming under her, subject to be divested upon the complete satisfaction of the obligations contained in a certain option contract between Mrs. Holton and Mrs. Lankford in 1923, and recommended that title be registered accordingly.

The defendants filed exceptions of fact and law to this report of examiner. When the exceptions came on for a hearing, the plaintiffs filed a motion to dismiss the exceptions of fact and law, and the defendants filed a traverse to the motion. Upon hearing the motion, the court passed an order providing that the matters contained in such motion would be passed upon at a later date. No final disposition was made on the motion or traverse.

The defendants sought to amend their exceptions by setting out as an exhibit to exception of fact No. 3, the verdict and decree of the court in the case of Mrs. R. T. Holton v. E. L. Tanner et al., from Coffee superior court, dated January 8, 1923, which required the administrators of the estate of B. H. Tanner to execute to Mrs. Holton a formal assignment in writing of the security deed executed by W. C. Lankford, the basis of Mrs. Holton's alleged prescriptive title. This amendment was disallowed, and error was assigned...