Price v. Carlton

• Court: Georgia Supreme Court
• Citation: Price v. Carlton, 121 Ga. 12, 48 S.E. 721 (Ga. 1904)
• Decision Date: 17 October 1904
• Parties: PRICE et al. v. CARLTON.

48 S.E. 721

121 Ga. 12

PRICE et al. v. CARLTON.

Supreme Court of Georgia

October 17, 1904

Syllabus by the Court.

1. As a general rule, the surety on a bond given in a judicial proceeding, conditioned to pay the eventual condemnation money, will not be permitted to intervene in the proceeding but where the principal is insolvent and does not defend in good faith, or where the surety has a defense peculiar to himself which the principal is under no legal obligation to plead, equity will permit him to intervene.

2. An equitable petition was brought for a general accounting. A contract between the parties relating to land was attached to the plaintiff's petition and introduced in evidence. The plaintiff contended that it was a contract of purchase, and the defendant that it was one of rental. Judgment was rendered finding the plaintiff indebted to the defendant in a given sum as rent for the land described in the contract for a specified number of years. Held, that this judgment was conclusive against the plaintiff as to the character of the contract and the amount of rent due thereunder in a distress warrant proceeding brought by the defendant against him, claiming the amount found by the judgment as rent for the land.

3. Held, also, that the surety on the eventual condemnation money bond given by the defendant in the distress warrant proceeding was likewise concluded by the judgment, even though he had been allowed to intervene in that proceeding.

Error from Superior Court, Oglethorpe County; H. M. Holden, Judge.

Action by E. S. Price, administrator, and others against H. H Carlton, administrator. From the judgment, both parties bring error. Affirmed.

On March 4, 1886, J. H. Newton and Thomas Hawkins entered into a written agreement, reciting that Newton had agreed "to bargain *** to sell" to Hawkins a part of what was known as the "Billups tract" of land. The contract provided that if by January 1, 1896, or at any time previous thereto, it should become "evident and beyond a doubt" that Hawkins could not pay for the land, the agreement relating to the purchase of the land should be void, "and a final settlement relative to the purchase and sale of the land shall be settled for as having been rented from said Newton by said Hawkins at the price for annual rent of $150 per year from the first of January, 1881 the time he went on the place." In 1889 Newton died, and Lamar Cobb qualified as the executor of his will. On March 10, 1893, the executor of Newton had a distress warrant issued against Hawkins, claiming $1,773.70 as rent for the tract of land referred to in the foregoing agreement. Hawkins made a counter affidavit, denying that he owed the amount claimed, or any other sum, as rent, and gave bond for the eventual condemnation money, with James M. Smith as surety. The issue was returned to the superior court of Oglethorpe county, in which county the land was situated. A short time previously to the issuing of the distress warrant an execution had been levied upon the tract of land, then in the possession of Hawkins, from Clarke county, issued in the case of Dearing against Cobb as executor of Newton's will which execution asserted a special lien against the Billups property. Notice of the levy was served upon Hawkins.

In November, 1893, Hawkins filed a petition in equity in Clarke superior court against Dearing's executrix, the executor of Newton, and the sheriff of Clarke county, which stated, among others, the following facts: In 1881 Newton sold to Hawkins 200 acres of the Billups tract, possession of which Hawkins took January 1, 1881, and he has been in continuous, open, adverse possession of the property from that time to the time of the filing of the petition. Hawkins had agreed to buy the property from Newton for the sum of $2,000, with 8 per cent. interest. None of the property was cleared or improved at the time he took possession, and he put upon it permanent improvements which cost more than $2,000. He had paid Newton, between 1883 and 1887, about $2,384 over and above all other indebtedness, which sum should be credited upon the purchase price of the land. Since the death of Newton he paid his executor about $1,870, which should be credited upon the purchase price of the land, and upon a fair settlement the estate of Newton was indebted to Hawkins; but if this was incorrect, and a balance should be found due from petitioner, he stood ready to pay it. On March 4, 1886, petitioner entered into a written contract with Newton for the purchase of the land, a copy of which was attached to the petition as an exhibit. The petition then set forth reasons why the sale under the Dearing execution should be enjoined, and prayed for an injunction. It also prayed that the executor of Newton "come to a fair, full, and complete and equitable settlement with petitioner, and that, if any amount is found due by petitioner, he be decreed to pay the same, which he stands ready to do; and that if it be found that the Newton estate is due petitioner anything, that he have judgment for the same."

Cobb, executor, filed an answer to this petition, setting up that at the time the contract between Newton and Hawkins was entered into Hawkins was indebted to Newton some $2,000 for advances and supplies previously furnished him. The answer also averred that, up to the time of the death of Newton, Hawkins paid him each year what he claimed was the proper portion for rent of the crops raised on the place, and that Hawkins "never claimed said land in his own right." The answer then set forth in detail the state of affairs between Hawkins and Newton's estate.

The judge refused to enjoin the sale under the Dearing execution, and Hawkins was dispossessed in 1894. The case was referred to an auditor. Hawkins amended the petition by averring that he had paid Newton and his executor all of the purchase price of the land, and had put permanent improvements thereon to the value of $3,000. He prayed for a judgment for the purchase money and the value of the improvements. After a delay of several years the auditor made a report, in which he held that "under the contract and evidence in the case the plaintiff, Hawkins, was a purchaser, and entered as such," and was entitled to damages by reason of his eviction. The auditor also found as follows: "Then, as to the purchase price or rental of the land, I find and so find that, if the defendant had seen fit to proceed against the plaintiff as a purchaser by suit in ejectment, the plaintiff would clearly have been liable for the original contract price, $2,000, with interest at 8 per cent.; but inasmuch as the defendant did not see fit to do so, but elected under the terms of the written contract of 1886 to treat plaintiff as a tenant, and demand possession of the premises, and by enforced sale of premises by another party, which the defendant did not see fit to stop or prevent, I hold, in view of these facts, that the plaintiff, Hawkins, would be liable under the contract only for yearly rental of $150 as stipulated for the 13 years he occupied the place, to wit, from 1881 (inclusive) to 1894. And the plaintiff is liable in this accounting between the parties for the sum of $150 for each of the years named, with interest at 7 per cent. from the end of each of the several years." And also: "The plaintiff is chargeable with the sum of $150 per year for the 13 years he occupied the place, with lawful interest, as specified above, and is to be credited with one thousand dollars ($1,000) damages, allowed by reason of improvements made on the place." Upon the report of the auditor a verdict and judgment were entered; the verdict reciting in part as follows: "In conformity with the auditor's report, we, the jury, find for the defendant, Lamar Cobb, executor of Newton, the sum of $1,267.52 principal, and the sum of $613.72 interest, being the balance due on rents at the rate of $150 per annum, as found by the auditor's report." The verdict and judgment were rendered December 7, 1900, and no exception has ever been taken thereto.

During the pendency of this litigation the distress warrant case in Oglethorpe county was by agreement of counsel continued from time to time; it being supposed that the case in Clarke county would determine the issues involved in the proceeding in Oglethorpe. In fact, for several years, docket entries were made in Oglethorpe, when the case was continued there to the effect that it was "controlled by equity case." When the distress warrant proceeding was finally taken up for trial, in 1902, James M. Smith, the surety on the eventual condemnation money bond, filed a petition alleging the issuance of the distress warrant, its levy, the giving of the counter affidavit and bond; that Hawkins had died insolvent; that Price had been appointed administrator, and had consented to be made a party in the proceedings; that the plaintiff had agreed to release Price as administrator against loss or personal liability, provided he would consent to be made a party and not defend; that under the foregoing arrangement Price had failed and refused to defend by reason of the agreement, and plaintiff was seeking, by the distress warrant, to obtain a judgment against the insolvent estate of Hawkins and petitioner as surety on the eventual condemnation money bond. It was alleged that Hawkins was not a tenant of Newton, or of his estate at the time the distress warrant issued; that he had not gone into possession of the premises as a tenant of Newton's, but under a contract of purchase, and owed no rent; that if the plaintiff was permitted to consummate the arrangement entered into with Price he would obtain a judgment against the estate of Hawkins, which would constitute a legal fraud upon petiti...