O'Neal v. Spivey
| Decision Date | 26 September 1928 |
| Docket Number | 6299. |
| Citation | 145 S.E. 71,167 Ga. 176 |
| Parties | O'NEAL v. SPIVEY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
It is not necessary to make a formal legal tender of the exact amount of a fi. fa. or other debt which is secured by deed when the creditor refuses to accept payment, and in lieu thereof demands possession of the realty pledged as security for the payment of the debt. The refusal of an offer to pay a debt obviates the necessity of tender.
A creditor whose debt was secured by transfer of a bond for title, and later by deed, declined to accept payment of the fi. fa. Then, instead of levying the fi. fa. upon the house and lot pledged as security for his debt, he had the bond for title levied upon, and purchased this paper at the sheriff's sale. He thereupon swore out a dispossessory warrant to evict his debtor. Later, after another offer to pay on the part of the debtor, the creditor filed a petition to place the property in the hands of a receiver. He was cast in both of these suits. The debtor was compelled to file an equitable petition to protect his rights in the premises, and was obliged to employ counsel in each of the causes mentioned. He incorporated in his equitable petition a claim of $250 damages as attorney's fees. Held, that the evidence authorized verdict for fees, and the court did not err in overruling the motion for new trial.
The expenses of litigation, where the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, may be allowed under the provisions of section 4392 of the Civil Code (1910). Any one of these three species of bad conduct may authorize a recovery of attorney's fees under the provisions of this Code section. Acting in bad faith, or being stubbornly litigious, or causing the plaintiff unnecessary trouble or expense, might in a particular case suffice to authorize a finding for attorney's fees. Under the evidence in this case the jury was authorized to find that the defendant acted in bad faith and was stubbornly litigious, and caused the plaintiff unnecessary trouble and expense, even if he had not paid the attorney it was necessary for him to employ. In the absence of any agreement as to the amount of the fee, the attorney is entitled to compensation quantum meruit. The plaintiff's right to recover would not be defeated by reason of the fact that he had not paid his counsel fees at the time of the trial, where evidence was introduced as to the value of the services rendered, which authorized the amount returned by the jury in its verdict.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by George Spivey and others against T. O'Neal. Judgment for plaintiff named for part of relief claimed, defendant's motion for new trial was overruled, and defendant brings error. Affirmed.
W. H Terrell, of Atlanta, for plaintiff in error.
W. O Wilson, of Atlanta, for defendants in error.
On March 6, 1925, T. O'Neal brought suit in the municipal court of Atlanta against George Spivey upon an alleged indebtedness of $192. He obtained a judgment against Spivey on April 23, 1925, for $130 and costs of the suit. Spivey had borrowed from O'Neal $200, which was part of the debt sued for, and had transferred to O'Neal a bond for title which he held from Mrs. Eloise Ellis to property known as 16 Green street, Atlanta, Ga. After judgment was rendered against Spivey, and on or about May 6, 1925, he says he tendered to O'Neal the amount of the judgment with costs. O'Neal denies that any tender was made, but it is not denied that he had a conversation with Spivey, by reason of which, Spivey says, he went to Mr. King, to whom O'Neal had referred the question as to whether he should accept the amount Spivey says he tendered to O'Neal, and that King declined to accept anything, claiming that Spivey had no further interest in the property conveyed by the bond for title. It is not denied that Spivey paid the costs in the case on May 6, 1925, to the marshal of the municipal court. O'Neal had his execution levied on the bond for title which he held as transferee of Spivey (the levy was not made on the land described in the bond for title, but on the physical bond itself), and in pursuance of that levy the paper on which the bond for title was written was sold by the marshal of the municipal court and bought in by O'Neal. After this sale of the bond for title, O'Neal undertook to dispossess Spivey from the premises known as 16 Green street by virtue of a dispossessory warrant, and upon a hearing this warrant was dismissed. Subsequently, on July 15, 1925, O'Neal filed a bill seeking to have a receiver appointed for the premises known as 16 Green street. Upon a hearing that bill was dismissed. In each of the foregoing proceedings W. H. Terrell appeared as attorney of record for O'Neal, and on August 19, 1925, according to the testimony of Spivey, he tendered payment of the amount of the aforesaid debt to Mr. Terrell, as attorney for O'Neal. This tender was refused. Later O'Neal paid off the balance of the purchase-money notes which were held by Mrs. Ellis, and had a deed executed by Mrs. Ellis to Spivey for the purpose of levy and sale. It was duly recorded, and thereafter the execution against Spivey was levied upon the property, 16 Green street. There is evidence that after this levy a tender was made on March 17, 1926, to J. I. Lowry, sheriff of Fulton county, of $147.35, the entire amount of principal, interest, and costs due under the execution, and that on the same day W. O. Wilson, attorney for Spivey, made to Mr. Terrell, attorney for O'Neal, a tender of $147.35, the same as had been tendered to the sheriff. The tender to the sheriff was refused because of instruction to that effect from Terrell. The evidence of the tender made by Wilson to Terrell, and of his refusal because he claimed that his client had instructed him not to accept it, was not disputed.
Spivey filed the present suit for injunction to stop the sale of the property under the levy of the fi. fa. In his petition the facts above referred to were alleged, and in addition to the prayer for injunction Spivey asked judgment...
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