Phillips v. Hightower
| Decision Date | 26 September 1940 |
| Docket Number | 13414. |
| Citation | 10 S.E.2d 854,190 Ga. 785 |
| Parties | PHILLIPS v. HIGHTOWER. |
| Court | Georgia Supreme Court |
Syllabus bye the Court.
1. An equitable petition seeking to enjoin the exercise of a power of sale in a security deed, and cancellation thereof, which alleges in a single count that the secured indebtedness has been paid and that the defendant is estopped to deny such payment by a judgment in a former case between the parties is not duplicitous.
2. Where a judgment rendered in former litigation between the parties on a different cause of action is relied upon as an estoppel, it is necessary to allege that the issue involved was actually made and determined in the former litigation. The allegations of the petition in the instant case relied upon to show an estoppel by judgment were sufficient to withstand a demurrer.
3. Since the auditor erred in sustaining demurrers to the major portions of the plaintiff's petition, and thereby erroneously removed from his consideration these portions of the case, the rulings on the demurrers rendered the further proceedings nugatory.
John Phillips filed a petition against Mrs. H. E. Hightower and A H. Gray, seeking to enjoin the exercise of a power of sale contained in a security deed and to obtain cancellation of the deed and the note which it secured. A. H. Gray, the attorney who represented Mrs. Hightower in advertising the land for sale under the security deed, was later stricken as a party defendant. The petition contained the following allegations: The wife of the petitioner died seized and possessed of a certain farm in 1923, leaving petitioner as her sole heir at law. She died intestate, and there has been no administration of her estate. Mrs. Hightower is now advertising the farm which the plaintiff inherited from his wife, for sale under a security deed which she claims was transferred to her by the Bank of Kestler. The advertisement recites that this security deed was given to the Bank of Kestler by Mrs. Emma Phillips, petitioner's wife, to secure a note for $795.78, dated September 15, 1919 and due November 15, 1920. It also recites that the property will be sold on March 6, 1937, as the property of the estate of Mrs. Emma Phillips. The note and security deed have been fully paid. In January, 1935, Mrs. Hightower sued out a dispossessory warrant to evict the petitioner from the farm which he inherited from his wife. He thereupon filed a suit against Mrs. Hightower and the marshal into whose hands the warrant had been placed for execution, seeking, among other things, to enjoin them from executing the dispossessory warrant and from evicting him from the farm. After the defendants had filed an answer, that case came on for trial and the jury returned a verdict in favor of the plaintiff. In pursuance of the verdict a decree was duly entered in his favor. On the trial of that case the note and security deed were introduced in evidence by Mrs. Hightower, and one of the issues in the case was whether or not this indebtedness had been paid. The judgment for the plaintiff in that case was therefore an adjudication that the note and security deed had been paid, and the defendant is now estopped by the judgment in that case from denying that the indebtedness secured by the deed has been fully paid.
A copy of the petition, answer, and decree in the former case are attached to the petition in the instant case. The allegations of the petition in the first case with reference to the manner in which the plaintiff obtained title to the farm were substantially the same as in the instant petition. The plaintiff alleged, that he had paid all debts owing by his wife; that H. E. Hightower, the husband and general agent of Mrs. Hightower, claimed that the plaintiff's wife died owing him or his wife quite a large debt, and the plaintiff paid whatever amount he could on this debt; that in 1925, at the behest of the Hightowers, an arrangement was entered into whereby the plaintiff turned his farm over to the Hightowers to work out the claimed debt of his wife; that they retained control and management of this farm under this arrangement for about seven years, and until the alleged debt was extinguished from profits realized by her from the operation of the farm; that during this time the plaintiff was employed by the defendant as overseer, and received a salary therefor; that after seven years the farm was turned back to the plaintiff and he went back on the land and farmed it in 1933 and 1934; that Mrs. Hightower is now claiming title to the land under a deed from the plaintiff which was obtained by fraud during the time she was in possession of the land; that on January 4, 1935, Mrs. Hightower sued out dispossessory proceedings against plaintiff; that the plaintiff is not a tenant of Mrs. Hightower; and that he is the owner of the title to the farm. He prayed that the defendants be enjoined from executing the dispossessory proceedings and from evicting him from the land. Mrs. Hightower in her answer set up that she owned the title to the farm by a warranty deed from the plaintiff as heir of his deceased wife, dated November 8, 1928, and reciting a consideration of $1,000, which she paid to the plaintiff. She admitted that she had possession of the farm from 1928 to 1933, but alleged that she entered into possession and claimed title under the warranty deed from the plaintiff. She also alleged that the plaintiff obtained possession of the farm in 1933 as her tenant. The trial resulted in a verdict for the plaintiff, and the court decreed 'that the defendants Mrs. H. E. Hightower and Carl Lanier [the marshal] are each perpetually restrained and enjoined from executing the dispossessory warrant referred to in the petition and from evicting the plaintiff or his tenant from the lands described.'
By amendment the petitioner added additional allegations to two paragraphs of the original petition in the present case and also added a new paragraph. He amended the paragraph of his petition in which he alleged that the note and security deed had been fully paid by alleging that the note was usurious that the defendant obtained the note and security deed after maturity, and that the payments therein described should therefore be credited on the principal amount of the note. The amendment alleged that approximately $2,000 had been received by the Bank of Kestler and Mrs. Hightower between 1925 and 1933 to be credited on the $795.78 note. The paragraph of the original petition alleging estoppel by judgment was amended by setting out certain testimony introduced upon the former trial. The material portions of this part of the amendment are as follows: 'Upon the trial of said case the petitioner John Phillips testified: For the purpose of controverting and taking issue with this testimony and other testimony hereinafter set out, the defendant * * * introduced into evidence the note and security deed. * * * W. R. Pullen, sworn as a witness for Mrs. H. E. Hightower, testified: Hick Powell testified: * * * Ivey Tabb testified: 'I knew Little Nick Hightower (H. E. Hightower) in his lifetime. I had a conversation with him in reference to the John Phillips or Widener place. Mr. Phillips was the overseer on the place and we got to speaking about the place and I asked him (Hightower) was John Phillips going to oversee for him another year, and he said he didn't know, that he (John Phillips) was out of debt and that he might go back home.'' In the new paragraph it was alleged that the transfer of the security deed from the Bank of Kestler to Mrs. Hightower, which was undated, was void because it was actually executed after January 19, 1935, at which time the assets of the Bank of Kestler were...
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