Penny v. Cash

• Decision Date: 05 September 1946
• Docket Number: 15538.
• Parties: PENNY v. CASH et al.
• Court: Georgia Supreme Court

39 S.E.2d 397

201 Ga. 215

PENNY v. CASH et al.

No. 15538.

Supreme Court of Georgia

September 5, 1946

Syllabus by the Court.

Where as here a receiver advertised land for sale as bounded on the east by a designated 42-acre tract, and the highest and best bid at such sale was confirmed by written order of the court the eastern boundary of the land acquired by the purchaser is the 42-acre tract, irrespective of ambiguities that may be found in the deed executed by the receiver. Accordingly where, in a suit by the receiver against the grantees of the purchaser to enjoin them from interfering with his possession, it is admitted that they are occupying 20 acres of such 42-acre tract, the verdict of the jury finding that they were not interfering with the possession of the receiver is contrary to law and the evidence, and the court erred in overruling the receiver's motion for new trial.

The salient facts necessary to a decision of this case may be stated as follows: In 1933 Mrs. Fannie E. Potter died testate, owing a certain debt to W. W. Fowler, evidenced by a note secured by property which included the following described tract of land conveyed on January 2, 1931: 'All that tract or parcel of land containing forty-two acres, more or less, lying in Oconee County, Georgia, being a part of the place known as the old Matthew W. Sykes home place, and being that part of the same which was the child's part of Mrs Allie Connor, sister of the grantee [grantor?] herein, which the said grantee [grantor?] bought from said Allie Connor and to which said grantee [grantor?] herein has had possession of for now more than thirty years; the said forty-two acres of land is bound on the north by property of J. P. Wise, on the east by property of Jim McLeroy; on the south by other land of grantee [grantor?]; and on the west by property of Nancy Sykes and J. P. Wise.'

The debt not having been paid in full, Fowler, on July 23, 1935, brought suit in the superior court of Oconee County, Georgia, against Mrs. Nancy Sykes, as executrix under the will of Mrs. Potter, and obtained a general judgment and a special lien on the above described 42-acre tract and other realty not here in issue.

Execution and levy followed, and at the sheriff's sale Fowler became the purchaser of the property, including the 42-acre tract, and deeds were properly executed to him and he immediately went into possession.

Mrs. Potter was, at her death, the owner of a tract of land lying immediately west and southwest of the above described 42-acre tract, and on February 2, 1937, Fowler caused the sheriff of Oconee County to levy thereupon to obtain by sale a balance due him by the estate. The advertisement of sale described the land as follows: 'The following described property, to wit: 86 acres, more or less, situate, lying and being in the Town of Bogart (or the southern outskirts thereof) in the 246th militia district, Oconee County, Georgia, bounded on the north and west by the Watkinsville-Bogart public roads; east by the lands of Fowler and lands of Birt Owens, and south by lands of J. L. McLeroy.'

During the pendency of this advertisement Mrs. Nancy Sykes, on February 17, 1937, filed an equitable petition in the superior court of Clarke County against W. W. Fowler and the sheriff, seeking to set aside the judgment rendered in favor of Fowler on July 23, 1935, to enjoin the defendants from proceeding with the levy and sale of the advertised property, cancellation of former deeds to Fowler and other relief. After the issuance of temporary restraining and interlocutory orders by the court, Miss Ethel Sykes, daughter of Mrs. Nancy Sykes, intervened, alleging an interest in the estate, mental incapacity of her mother to discharge the duties of executrix; but adopting the allegations of the petition, and praying that a receiver be appointed to take charge of and administer the estate of Mrs. Potter. Upon this application the court allowed the intervention, made certain parties, and appointed L. Dennis Penny as receiver, and he immediately qualified and took charge of the estate.

With the approval of the court certain timber was sold from the 86-acre tract and the proceeds applied towards the debt due Fowler. Thereafter upon application of Fowler for a public sale of that tract to satisfy the balance due him by the estate, the court, on January 21, 1941, issued an order for the advertisement and sale of the said property for this purpose, the sale to be made on the first Tuesday in February, 1941, and to be confirmed by the court. Accordingly, the receiver, on January 21, 1941, advertised the land for sale as follows: 'Will be sold under order of the superior court of the Western Circuit, between the legal hours of sale, on the first Tuesday in February, 1941, before the court house door of the county court house at Watkinsville, subject to confirmation by the court, the following described land, to wit: Eighty-six acres, more or less, situated, lying and being in the town of Bogart (or the southern outskirts thereof), in the 246th militia district, Oconee County, Georgia, bounded on the north and west by Watkinsville and Bogart public road; east by the lands of Fowler and lands of Birt Owens, and south by lands of J. L. McLeroy. The said land will be sold to the highest and best bidder subject to confirmation of the court.'

On the date of the sale, February 4, 1941, Fowler, through his counsel, made in writing the following offer to the receiver: 'On behalf of my client, Mr. Fowler, I herewith submit for him by his authority the following bid for the land advertised for sale today. The amount now due Fowler upon his judgment is $1700, to this date. His bid is that he will accept a deed to the said tract free of all liens in full satisfaction of his judgment. Kindly, therefore, transmit this bid to the court in your report, as the same is, under the order, to be made to the court not later than the coming Saturday.'

This bid was transmitted to the court, which on February 8, 1941 entered the following order: 'It appearing to the court that in accordance with orders of the court heretofore made * * * every possible effort has been made to sell land of the above estate for the removal of ecumbrances and for the best interest of the estate, and that the receiver, L. Dennis Penny, did in pursuance of an order of this court expose for sale before the court house door of Watkinsville, Oconee County, Georgia, on last Tuesday, February the 4th, 1941, eighty-six acres, with the order to report back to this court bids received for the confirmation of the court, and that only bid received by the said receiver is from W. W. Fowler, of Clarke County, Georgia, which bid is that he will accept a deed to said land free of any and all liens in full satisfaction of the judgment and fi. fas. that he holds against the said estate, the amount of which with principal, interest, and attorney's fees to this date is sixteen hundred and ninety-eight dollars, and that said bid is the highest and best bid received, and that said bid is as much as can be hoped for, after every effort by said receiver has been made, and that said judgment is a valid lien against all of the property of the said estate; it is, therefore, ordered and adjudged by the court that the said receiver, L. Dennis Penny, make and execute and deliver to the said W. W. Fowler a deed conveying title to the said tract of eighty-six acres of land, free of any and all liens, the said land being more accurately described as follows: Eighty-six acres of land lying and being in Oconee County, Georgia, on the outskirts of Bogart, Ga., in the 246th militia district, bounded on the north and west by the Watkinsville and Bogart public roads and east and south by other lands of said estate, J. L. McLeroy and others, and being a part of the lands of the said Mrs. Fannie E. Potter, deceased. And it is further ordered that, upon such deed being made and delivered to said W. W. Fowler, * * * the judgment above mentioned held by the said W. W. Fowler be marked satisfied of record by the clerk of the superior court of Oconee County, Georgia, and that...