Ray v. Pitman

• Decision Date: 04 March 1904
• Citation: 119 Ga. 678,46 S.E. 849
• Parties: RAY . v. PITMAN et al.
• Court: Georgia Supreme Court

46 S.E. 849

119 Ga. 678

RAY .

v.PITMAN et al.

Supreme Court of Georgia.

March 4, 1904.

EQUITABLE MORTGAGE—FORECLOSURE—QUIETING TITLE—PETITION—AMENDMENT—DEMURRER.

1. The original petition was sufficient as against a general demurrer. The amendment thereto related to matters which were germane, and was properly allowed, and the general demurrer to the petition as amended was properly overruled.

2. A defect in a petition resulting from a nonjoinder of proper parties cannot be taken advantage of by general demurrer.

(Syllabus by the Court.)

Error from Superior Court, Pulton County; J. H. Lumpkin, Judge.

Action by J. H. Pitman and J. H. Widener against Annie F. Ray. Judgment for plaintiffs, and defendant brings error. Affirmed.

Lavender R. Ray and W. R. Hammond, for plaintiff in error.

J. H. Pitman, for defendants in error.

COBB, J. J. H. Pitman and J. H. Widener brought their petition against Annie F. Ray, alleging: On March 1, 1892, L. R. Ray, the husband of defendant, borrowed from Robins $1,200, gave him a promissory note for that amount, and executed a deed to land to secure the payment of the note. After the delivery and record of the security deed, Ray conveyed to the defendant the property described in the security deed. In 1807 Robins brought a suit in ejectment in the superior court of Coweta county against the defendant and her husband; and a consent judgment was rendered, in which it was provided that the plaintiff should recover possession of the land, but should convey the same to Annie F. Ray whenever she should pay the amount due on the note of her husband, and that in the meantime the plaintiff should account to her for the rents and profits of the land, and she should have possession of the premises whenever the debt of her husband was paid. Neither the husband nor the wife having paid any part of the debt, Robins brought suit in the superior court of Douglas county against L. R. Ray on the note; and on August 23, 1901, a Judgment was rendered in favor of the plaintiff for stated amounts as principal and interest, these amounts being arrived at by what purported to be an accounting of the rents and profits from the date of the judgment in Coweta superior court to the date of the judgment last referred to. The defendant was not a party to this proceeding. Robins, after filing a deed to L. R. Ray in the office of the clerk of the superior court of Coweta county, caused the land to be levied upon under the execution from the superior court of Douglas county, and after due advertisement the same was sold by the sheriff to the plaintiff J. H. Pitman, who thereafter conveyed an interest in the same to the plaintiff J. H. Widener. It is alleged that the plaintiffs are informed that the defendant still claims that she has a right to redeem the land, but that she has never offered, and does not now offer, to pay any part of the debt. The prayer is that, if the defendant stall has a right to redeem, she be required to come in and tender the amount due on the debt, and that the time within which the tender should be made, and the amount of the tender, be fixed and determined. To this petition the defend-ant filed a general demurrer. The plaintiffs, over the objection of the defendant, were allowed to amend the petition by alleging that the interest on the debt exceeds by $500 the amount of the rental value of the property since the same has been held by the plaintiffs and by Robins, and that the annual interest exceeds the annual rental value of the property, and by adding a prayer that an accounting be had, and the amount that the defendant ought to pay be determined— the plaintiffs offering to give full credit for all rental or income—and that a decree be molded directing a sale of the land, and the payment to plaintiffs of the balance due on the debt to Robins; the balance to be paid over to the defendant. The defendant renewed her general demurrer to the petition as amended. The court overruled the demurrers, and the defendant excepted, assigning error upon this judgment, and also upon the judgment allowing the amendment above referred to.

Mrs. Ray, not being a party to the judgment in Douglas county, is not bound in any way by that judgment. Her rights in the land, as to Robins or any one claiming under him, are to be determined solely by the judgment in Coweta superior court. It is contended that the effect of this judgment was to preclude Robins from afterwards bringing suit against L. R. Ray upon the note, and that, even if this is not true, Robins was certainly precluded from filing a deed to Ray, and selling the land under the execution founded upon the judgment on the note. For the purposes of this case only, this may be conceded. Treating the judgment in Douglas superior court as an absolute nullity, it may still operate as an estoppel against Robins in favor of any one who has been misled by his conduct in reference to this...