Syllabus by the Court.
Where
exceptions of fact and of law are filed to an auditor's
report in an equity case, and a consent order is taken
referring the whole case to the court for final decree
without the intervention of a jury, the court is not required
to pass seriatim on each exception.
Where a
suit is brought against a defendant, and no process is prayed
or annexed to the petition, and the defendant neither waives
process nor pleads to the merits, and such suit is
voluntarily dismissed by the plaintiff, and where the
plaintiff within six months of the dismissal of the first
suit brings a second one against the defendant, the first
action does not constitute the pendency of a suit, so as to
prevent the bar of the statute of limitations from arising
and give the plaintiff the right to bring a second action
within six months of the dismissal of the first.
An
administrator may, in good faith and with proper prudence
submit to arbitration matters in controversy in connection
with the estate he represents.
The
evidence authorized the conclusion of the auditor that no
fraud was perpetrated on the administrator, and that he
participated in the arbitration and accepted the money found
to be due by the arbitrators; and the court did not abuse his
discretion in approving such findings of fact by the auditor.
"Receipt
by one party of that which is awarded to such party will
estop that party from refusing to comply with the award in
favor of the other party, on the plea of illegality or
irregularity in the award."
A
claimant of land who is out of possession should seasonably
apply for cancellation of arbitration proceedings alleged to
be a cloud upon his title, where the party in possession
claims title under such proceedings, of which the claimant
has notice, or he will be barred by his laches. Following the
analogy of the law, a plaintiff under such circumstances will
be barred of his remedy within seven years.
Where
it is complained that an auditor refused to allow a witness
to testify that he had instituted a suit, and it appears that
subsequently during the hearing the record of the suit was
introduced in evidence and the witness interrogated with
respect thereto, any error in the ruling so complained of
becomes immaterial.
Under
the circumstances narrated in the corresponding division of
this opinion, the ruling of the auditor complained of will
not require a new trial.
The
decree of the court is supported by the evidence, and no
sufficient reason is made to appear for its vacation.
Error
from Superior Court, Sumter County; Z. A Littlejohn, Judge.
Action
by J. J. Murray, administrator de bonis non of J. E. J
Horne, against Mrs. C. A. D. Hawkins. Judgment for defendant
and plaintiff brings error. Affirmed.
An
administrator may in good faith and with proper prudence
submit to arbitration matters in controversy relative to the
estate.
J. J.
Murray, administrator de bonis non of J. E. J. Horne, brought
an action against Mrs. C. A. D. Hawkins to set aside as
fraudulent the following award:
"State of Georgia, Sumter County. This agreement made
and entered into this the 11th day of July, 1904, between J.
J. Murray, administrator de bonis non of the estate of J. E.
J. Horne, of the one part, and Mrs. C. A. D. Hawkins, of the
second part, both of Sumter county, Ga.:
(1) Whereas, certain differences have arisen as to the
validity of eight certain tax deeds as made by D. H. Johnson,
sheriff of Clinch county, Ga., to S. H. Hawkins, dated June
4, 1878, conveying, by virtue of sale for taxes, lots of land
Nos. 172 and 189 in the Twelfth district, and 161, 162, 163,
187, 188, 189 in the Thirteenth district, of originally
Appling, and now Clinch, county, Ga., and lands afterwards
having been by S. H. Hawkins deeded to Mrs. C. A. D. Hawkins
party of the second part, who now claims a fee-simple title
to the same. The said land was sold at tax sale by virtue of
a tax fi. fa., as above set forth, on June 4, 1878, as
property of J. E. J. Horne's estate, the same having been
issued against J. R. G. Horne, a former administrator of J.
E. J. Horne, who claimed title to the same.
(2) Whereas, the said C. A. D. Hawkins also claims a
considerable amount as due her from said estate on account of
a transfer of a certain tax fi. fa. issued by A. C. Speer,
tax collector of Sumter county, Ga., dated March 18, 1874,
against J. R. G. Horne, administrator of J. E. J. Horne,
which claim the said party of the first part now disputes and
refuses to pay.
(3) Now, in order to adjust said differences and settle all
matters of controversy as to the validity of said tax deed,
and all questions of title arising from same, and on account
of said land in any way, as between said parties, and also in
order to settle the amount due and owing, if any, on account
of said debt as claimed by the said C. A. D. Hawkins, party
of the second part, the parties do hereby submit the same to
three arbitrators, viz., To Charlie Council, chosen by the
party of the first part, and W. R. Speer, chosen by the party
of the second part, and Jno. N. Scarborough chosen by the
arbitrators selected by the parties. The submission when
signed shall be delivered to one of the arbitrators and
entered on the minutes of Sumter superior court, and become
irrevocable and have the effect of a judgment of said court.
Witness our hands and seals. J. J. Murray [L. S.], Adm'r
de Bonis Non J. E. J. Horne Estate. C. A. D. Hawkins [L.
S.]"
"Georgia, Sumter County. We do swear that we will
impartially determine the matter submitted to us by J. J.
Murray, administrator de bonis non of the estate of J. E. J.
Horne, party of the first part, and Mrs. C. A. D. Hawkins,
party of the second part. So help us God.
[Signed by Council, Speer, and Scarborough.]
Sworn to and subscribed before me this the 16th day of June,
1904.
I. B. Small, N. P., S. Co., Ga."
"Georgia, Sumter County. We, the undersigned arbitrators
to whom were submitted the differences between J. J. Murray,
administrator de bonis non of the estate of J. E. J. Horne,
and C. A. D. Hawkins, arising upon the validity of certain
tax deeds and titles to certain lands in Clinch county, Ga.;
also the difference arising upon the claims of said C. A. D.
Hawkins for money due on certain tax fi. fas. transferred to
her, etc. On the 15th day of July, 1904, the notice having
been given, the hearing was had. After hearing the evidence
on both sides and duly considering the same, we find:
(1) That the eight certain tax deeds dated June 4, 1878, and
made by D. H. Johnson, sheriff of Clinch county, Ga., in
pursuance of sale of land lots Nos. 172, 189 in Twelfth
district, and 161, 162, 163, 188, 189, in the Thirteenth
district, all in originally Appling, now Clinch, county, Ga.,
are good and valid deeds, and pass the title to said lands to
said S. H. Hawkins, and that said tax sale was regular and
legal throughout, and free from any legal objections
whatever.
(2) That any and all judgments and rights heretofore obtained
by J. J. Murray, administrator de bonis non of said estate,
against J. F. and W. D. Smith, one or both, and against J. F.
Dougherty, of Clinch county, Ga., in the superior court of
said county, shall by this arbitration be duly transferred to
C. A. D. Hawkins, so that all rights therein and pertaining
to said judgments shall vest in her as effectually as they
vested in said J. J. Murray as administrator de bonis non.
(3) That upon C. A. D. Hawkins paying to J. J. Murray,
administrator de bonis non, the sum of $25 and the cost of
this arbitration, the right under this arbitration shall
become fully vested in C. A. D. Hawkins.
Signed by us this 16th day of July, 1904. Charlie Council. W.
R. Speer. John N. Sarborough.
Georgia, Sumter County. We, the undersigned, have fully
accepted the terms of the arbitration as made, and agree to
abide by same. The party of the second part has paid the
money named, $25, which the party of the first part
acknowledges receipt of in full. This July 16, 1904. J. J.
Murray, Administrator de Bonis Non J. E. J. Horne.
Filed in office July 21, 1904. T. F. Gatewood, Deputy Clerk,
S. C."
The
plaintiff alleged, in brief, as follows: The defendant and
her confederates on April 26, 1911, caused the foregoing
arbitration proceedings to be recorded on the minutes of the
superior court of Sumter county; and on May 6th following he
filed his petition to have it set aside, which petition was
dismissed, and the present suit recommenced within six months
after the dismissal. He did not, as administrator or
individually, agree to submit to arbitration the matter
referred to in the submission. He selected no arbitrator
received no notice that any arbitration would be had, and did
not appear before the arbitrators either in person or
otherwise. He did not receive any money as purported in his
receipt attached to the award. The award was procured under
these circumstances: S. H. Hawkins, the husband of the
defendant, who had been his intimate friend since boyhood,
some time previous to the date of the alleged arbitration,
represented that he had an interest in certain lands in
Clinch county, and that the estate of J. E. J. Horne also had
a small or nominal interest therein, and that it was
necessary that an administration de bonis non should be had
upon the estate of Horne in order to protect their respective
interests, and requested that the plaintiff apply for
administration. Accordingly he made application, and was
appointed as administrator de bonis non of J. E. J.
Horne's estate. Certain litigation was instituted in
Clinch superior court, and the same was looked after by Mr.
Hawkins as his agent. Some time afterwards two...
