Malcom v. Fulton County

• Citation: 73 S.E.2d 173,209 Ga. 392
• Decision Date: 14 October 1952
• Docket Number: 17984,Nos. 17983,s. 17983
• Parties: MALCOM v. FULTON COUNTY. FULTON COUNTY v. MALCOM.
• Court: Georgia Supreme Court

Page 173

73 S.E.2d 173

209 Ga. 392

MALCOM v. FULTON COUNTY.

FULTON COUNTY v. MALCOM.

Nos. 17983, 17984.

Supreme Court of Georgia.

Oct. 14, 1952.

Rehearing Denied Nov. 13, 1952.

Syllabus by the Court.

For the reasons stated in the opinion, the judgment on the main bill of exceptions is reversed, and the judgment on the cross-bill is affirmed.

This litigation arose on October 10, 1950, when Fulton County filed a suit in equity against James T. Malcom. The petition alleged that the defendant had unlawfully entered upon and was wrongfully cutting and removing valuable timber from the plaintiff's land. The prayer was for an injunction, temporary and permanent, to prevent a continuation of the trespass. The defendant interposed general and special demurrers to the petition and, subject thereto, filed an answer. His answer denied that the act complained of was wrongful and averred that he purchased the timber from the plaintiff; that he paid the plaintiff for it in full; and that he was cutting and removing it pursuant to his purchase and under the terms of his conveyance. The court overruled the general demurrer, some of the special demurrers, and sustained others. To the judgment sustaining some of the special demurrers, the plaintiff excepted pendente lite, and error is assigned thereon in the cross-bill of exceptions. The plaintiff subsequently amended its petition and alleged that the contract of purchase relied upon by the defendant, and under which he claimed a right to do the act complained of, was null and void for several stated reasons, and prayed that it be cancelled. He renewed his demurrers to the original petition and urged them to the petition as amended; and also demurred further to the petition as amended upon both general and special grounds. To a judgment overruling these demurrers, the defendant excepted pendente lite and assigned error thereon in the main bill of exceptions. He filed two other amendments to his original answer, averring defensively occurrences which had transpired since the suit was filed.

In support of the pleadings as they stood when the case came on for trial, the parties introduced the following evidence: The fiscal affairs of Fulton County are governed by a board of five county commissioners, known as the Board of Commissioners of Roads and Revenues. At the time this suit was instituted, Fulton County owned a boundary of land near Adamsville, containing about 2,500 acres, which are known as the Botanical Gardens and Utoy Boulder Park properties, and upon about 300 acres of which there was valuable timber. The Board of County Commissioners for Fulton County, at a meeting held on September 7, 1950, decided to sell all land and timber of the county unserviceable for county purposes. Charlie Boynton, the county's land agent, was authorized to accept bids for the timber on the county's tract near Adamsville, and was directed to report them to the board for consideration and disposition. At a meeting of the board on September 18, 1950, as its minutes show, Boynton reported that he had a bid of $30,500 from James T. Malcom for all standing timber ten inches, or more, in diameter at the butt on the county's land located on the left-hand side of Gordon road just beyond Adamsville, embracing the area of the Botanical Gardens and the Utoy Boulder Park properties. In addition to his cash offer of $30,500, Malcom agreed to furnish the county, without cost to it, 55,000 feet of oak lumber for bridge uses, and to remove all tree-laps and other debris from certain portions of the tract. By resolution duly entered upon its minutes, which recited that the timber for which it had an offer from Malcom was neither used nor useful for county purposes, the board by a majority vote, accepted Malcom's offer and directed the county attorney to prepare and present to it a proper contract of conveyance. A contract was drawn by the county attorney in accordance with the offer made by Malcom and as accepted by the board. It was presented to and signed by Malcom, who at the time of signing paid the full amount of his cash offer by cashier's check. At a special meeting of the board during the morning of October 4, 1950, the county attorney read the contract which he had prepared, and which Malcom had signed, to the county commissioners, omitting to read boundary descriptions of the land upon which the timber was located. Before the contract was approved and signed, the county attorney stated to the members of the board that it would be necessary for the contract to recite the board's action of that date, and after the contract was signed, the words, 'And the minutes of the meeting of said board held October 4, 1950,' were inserted by the county attorney. By resolution duly entered upon its minutes, the board, by a majority vote, approved and ratified the contract presented, and authorized and directed its chairman to execute it for and on behalf of the county. It was then signed, 'Fulton County, a political subdivision of Georgia, By James H. Aldredge (Seal),' and delivered to the clerk of the board for record upon its minutes. At a meeting on October 6, 1950, after discussing offers for the timber in question which had been received after the contract of purchase and sale to Malcom had been approved, ratified, executed and delivered to its clerk for record, and by resolution duly entered upon its minutes, the board unanimously voted to 'reconsider the sale of the county-owned timber located at Adamsville.' At this point in the meeting, as the minutes show, 'Commissioner Camp stated he would like to have a ruling from the county attorney on the matter, inasmuch as the board had already approved the contract between Fulton County and James T. Malcom and had authorized the chairman to execute said contract.' The county attorney then advised the board that Malcom's contract would not be binding until recorded upon its minutes. The board then, as its minutes show, unanimously voted to rescind the contract with Malcom, instructed its clerk not to record it in the minutes, and directed the county treasurer to refund to Malcom the money he had paid for the timber. The board promptly notified Malcom of its action. Upon a tender of the money to Malcom, he refused to accept it. Malcom, on October 9, 1950, notified the board that he had entered upon its land for the purpose of cutting and removing his timber, and requested specifications for the lumber he was obligated to furnish the county. He continued to cut and remove the timber until he was, on October 10, 1950, restrained by court order from doing so. Subsequently, Malcom brought mandamus in the Superior Court of Fulton County against the members of the board of county commissioners and its clerk, and prayed that they be required to record his contract on the board's official minutes. While these two proceedings were pending and on February 6, 1951, A. L. Henson as counsel for the defendant Malcom, by letter, asked the board of commissioners to stipulate that the timber involved was not useful for county purposes. By the same letter, he again asked the board to affix the county's official seal to the timber instrument which had been previously signed, and that the instrument be then delivered to his client Malcom. His letter stated: 'By so doing the merits of these law suits will be clarified and the court will then be in a position to determine whether or not the instrument should be recorded upon the minutes of the board.' At a special meeting of the board held on February 7, 1951, Commissioner Hailey moved that Mr. Henson's request be granted. His motion was seconded by Commissioner Towns. Mr. Wright, assistant county attorney, after reading Henson's letter, advised the commissioners that it was all right to grant Henson's request. Hailey's motion was passed by a majority vote, as the minutes show, and the board's clerk was thereby directed to place the county's seal on the contract and deliver it to A. L. Henson, the legal representative of James T. Malcom; and such was accordingly done on February 7, 1951. The relief sought by Malcom in his mandamus proceeding was later granted by the court, and the contract was pursuantly recorded in the minutes of the board of county commissioners on February 4, 1952. The contract, by express terms, conveyed to Malcom all standing timber, ten inches or more in diameter at the butt, upon the the land described in the contract of conveyance. The parties stipulated that the land upon which the timber in question is located belonged to Fulton County, and the evidence shows without dispute that the timber was not serviceable for any county purpose.

A jury, on February 29, 1952, found that a permanent injunction should be granted as prayed for, and that the contract was void and should be cancelled. A decree was accordingly entered. The defendant, in due time, moved for a new trial, and afterwards amended his motion by adding twenty special grounds, which, after being heard, were overruled. The defendant excepted and sued out a writ of error, assigning error upon his pendente lite exceptions and upon the judgment overruling his motion for a new trial as amended.

Harris, Henson & Gower, Harris & Gower, Atlanta, for plaintiff in error.

Harold Sheats, Durwood T. Rye, E. A. Wright, Standish Thompson, Atlanta, for defendant in error.

CANDLER, Justice.

1. There is no merit in the contention that the court erred in overruling the general demurrer to the plaintiff's petition as amended. All contracts made for and on behalf of a county by its board of county commissioners must be in writing and entered on its minutes. Code, § 23-1701; Board of Commissioners of Morgan County v. MacDougald Construction Co., 157 Ga. 595, 122 S.E. 317; Graham v. Beacham, 189 Ga. 304, 5 S.E.2d 775. 'If they are not in writing and not so entered, they are not enforceable.' In this case, the petition as amended alleges that the...