Murray v. Hawkins

• Decision Date: 11 January 1916
• Docket Number: (No. 162.)
• Citation: 144 Ga. 613,87 S.E. 1068
• Parties: MURRAY. v. HAWKINS.
• Court: Georgia Supreme Court

87 S.E. 1068

144 Ga. 613

MURRAY.

v.HAWKINS.

(No. 162.)

Supreme Court of Georgia.

Jan. 11, 1916.

(Syllabus by the Court.)

Error from Superior Court, Sumter County; Z. A Littlejohn, Judge.

Action by J. J. Murray, administrator de bonis non of J. E. J. Home, against Mrs. C. A. D. Hawkins. Judgment for defendant, and plaintiff brings error. Affirmed.

J. J. Murray, administrator de bonis non of J. E. J. Home, 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. Home, 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. Home's estate, the same having been issued against J. B. G. Home, a former administrator of J. E. J. Home, 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. Home, administrator of J. E. J. Home, 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. Home 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. Home, 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. Home, 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, 1S9 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. P. 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. Sar-borough.

"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. Home.

"Piled in office July 21, 1904. T. F. Gate-wood, 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. Home 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 Home 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. Home'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 small boys presented to him a paper, with the statement that it concerned the litigation in respect to the Clinch county land, and had been sent by Mr. Hawkins for his signature. Having implicit confidence in Mr. Hawkins, and believing that thepaper concerned the Clinch county litigation, and being without his reading glasses, he signed, but did not read, the paper presented by the two boys. He had no controversy with the defendant, and was not aware of any claim that she had in or to the lands described in the alleged agreement for submission. As soon as the arbitration proceedings were filed in the clerk's office of the superior court they were withdrawn by the defendant or some one in her behalf, and withheld from record until April 26, 1911, when they were returned to the clerk's office and entered on the minutes of the court. The purported arbitration was void, not only on account of fraud, but for the reasons, to wit: That, as administrator, he had no legal authority to submit any matter pertaining to the estate of his intestate to arbitration; that the tax fl. fas, by virtue of which the sheriff's sales were made were issued against R. G. Home, administrator upon the estate of J. E. J. Home, and were invalid as fi. fas. against the estate which he represented; that no sufficient oath was taken by the arbitrators; that there was no suit pending and no order authorizing the submission by the administrator; and that the proceedings did not disclose upon their face that the property purported to have been conveyed by the deeds was in the possession of the defendant and that it was necessary for the administrator to recover possession of the land for administration. By amendment he further alleged that the findings and award of the arbitrators were void, because of a palpable mistake of law by the arbitrators as to the validity of the fl. fas. under which the land was sold; because the tax fl. fa. referred to in the arbitration proceedings showed that it was transferred by the tax collector of Sumter county to S. H. Hawkins four years prior to the sale of the land thereunder; because a sale under a transferred tax fi. fa. was invalid, and the transfer of the tax fi. fa. by the tax collector amounted to its payment and discharge; because the proceedings were too general and indefinite to fix the rights of the parties; because the submission provided that the award should be entered upon the minutes of the superior court and become irrevocable and have the effect of a judgment, and the entry of the same on the minutes of the court was necessary to give it force and effect, and such record could not be legally made after the lapse of nearly seven years from the time it was filed; and that the sale of the land was further illegal because there had been no return of nulla bona on the tax fl....