Robenson v. Son

• Decision Date: 31 December 1869
• Citation: 40 Ga. 375
• Parties: GEORGE F. ROBENSON, plaintiff in error. v. J. B. ROSS & SON, defendants in error.
• Court: Georgia Supreme Court

40 Ga. 375

GEORGE F. ROBENSON, plaintiff in error. v. J. B. ROSS & SON, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Equity Practice. Receiver. Decided by Judge Clark. Lee Superior Court. September Term, 1869.

For the beginning of this strife see Robenson v. Vason et al., 37th Georgia Reports, 66. After the judgment of the Supreme Court in that case had been made the judgment of the Court below, Ross & Son and Robenson began negotiations for a settlement of the matter as between them. They entered into a certain agreement with him, (which does not appear in this record,) under which he seems to have kept possession of the Chehaw place, etc. Ross & Son undertook to sell said Chehaw place, etc., under the power granted in the mortgage, but Robenson procured the military authorities to prevent them from perfecting said sale. Subsequently, in May, 1868, they entered into the following contract:

"Said party of the first part, (Ross & Son,) have agreed with the said party of the second part, to lease to the said party of the second part the plantation of the said J. B. Ross & Son, in the 14th district of Lee county, known as the Chehaw plantation, together with the stock on said place, and other personal property belonging to it, for the period of three years, from the 1st day of January, 1868, on the following terms and conditions, to-wit: The said J. B. Ross & Son agree to furnish to the said Robenson, for his use in cultivating said Chehaw plantation, the personal property of "every kind which they own on said place, and make advances to said Robenson, in addition to those already made, of provisions and other articles absolutely necessary in carrying on planting operations on said place, to make a title to lot No. 17, of said Chehaw plantation to George F. Robenson, as trustee for George B. Robenson, minor son of said George F. Robenson: to insure the life of the said George F. Robenson for the benefit of his said son, for $10,000 00, from this date, or as soon as insurance can be affected, to the 25th day of December, 1870; to give to said George F. Robenson the privilege of purchasing said Chehaw plantation, with the personalty upon it, for the amount paid by said J. B. Ross & Son for the same, together with interest on said amount, and any advances which may be due to the said J. B. Ross & Son at the time of the purchase, said privilege of purchase to continue until the 25th day of December, 1870, and pay to Messrs. Wright & Warren, on or before the first day of January, 1869, one thousand dollars due them by said Robenson, and to G. M. Stokes, of Lee county, on or before the first day of January, 1869, five hundred dollars due him by said Robenson. Robenson, upon his part, stipulates and agrees:

1st. That he will pay for the rent of said plantation at the rate of $800 per annum, from the first day of January, last, $500 00 for rent, to be due on the 25th day of December, 1868, $1,100 00 on the 25th day of December, 1869, $800 00 on the 25th day of December, 1870.

2d. That he will cultivate said plantation to the best of his skill, take good care of the personal property on it, and special care of the stock upon it, keep it under good fences, and repair all the fences and houses on said place which need repair.

3d. That all the cotton made upon said place, as long as this lease shall continue, and for each year that it shall continue, shall be delivered by him at Wootten's Station to G. M. Stokes, or some other agent of the said J. B. Ross & Son whom they may designate, to be shipped as the said J. B. Ross & Son may direct, and that the said J. B. Ross & Son *shall control said cotton, its shipment, and its sale absolutely, and appreciate the proceeds to the payment of any and all sums due them by said Robenson at the time of the sale of any of such cotton, for advances on any account made by them to said Robenson for rent, or for the repayment of any sum or sums of money paid by them, as hereinbefore stipulated, to Wright & Warren, and to G. M. Stokes.

4th. That said J. B. Ross & Son shall repay to themselves the amount paid by them to Wright & Warren, and to G. M. Stokes, out of said cotton, that they shall have a lien upon all the crops grown upon said place each year, during the continuance of said lease, for the repayment of their rent and their advances, and the repayment of any amount which they may pay under this contract to Wright & Warren, or to G. M. Stokes. The said Robenson will not create any other lien upon said crops, or any portion of them, except for the employment of laborers, with the knowledge, consent and approval of the said J. B. Ross & Son, to cultivate the same, and that if this lease shall terminate at the end of the first or second year, or at any time before the 25th day of December, 1870, the said Robenson will leave an amount of provisions on the place equal to that which was upon it when this lease began, to-wit: on the 1st day of January, 1868; and if it shall terminate on the 25th day of December, 1870, as stipulated in this contract, he will leave upon said place the same amount of provisions, and of the same kind and quality, which was on said pace on the first day of January last.

5th. That the amount already advanced by said J. B. Ross & Son, since the 1st day of January last, and a payment of $250 00, made by them this day in cash, shall be considered as advances under this contract.

Finally. It is stipulated and agreed by and between the said parties, that the lease hereby made and entered into shall cease, and be determined whenever either of said parties shall fail to carry out the stipulations of this agreement, or shall violate any of its provisions."

A dispute arose as to the performance of this contract, and *Ross & Son filed their bill against Robenson, averring the foregoing facts, and that the agreement was made in a spirit of generosity, to enable Robenson to pay said notes, and that Robenson violated it; that Robenson\'s procuring the military interference with their attempted sale was in bad faith; that this second agreement set out was made by them for the same generous purpose, after the military interference had been withdrawn, and after they had sold the property under the power of sale granted in said mortgage, and had purchased it for themselves, and upon their faith that Robenson would comply with said contract; that this contract was made soon after their purchase, and on the same day. They aver that they did comply with the contract, but that Robenson fraudulently violated it, in that he had never paid the $500 00 rent for 1868, did not deliver them all the cotton made on the Chehaw place, had misappropriated the money, etc., furnished him under said contract; that though they furnished him more than was necessary to carry on the farm, he had wasted much of it in foolish extravagance; he had not attended to the farm, and owes them for advances made under said contract $7,000 00; that he is insolvent, and a spendthrift; that they have no means of securing their said advances but the cotton crop of 1868, and yet that, because he demanded more money, and they would not supply it, he notified them that he would treat said contract as utterly void. They averred that this notice was given when the crop was about maturing, and with a fraudulent intent by Robenson to appropriate the crop to his own use; that part of it would necessarily go to the laborers, and they Ross & Son, ought to have the balance under said contract. In order that they might get it, they prayed that Robenson be enjoined from disposing of any of the property, and that this farm be put into the hands of a Receiver, who should take care of the farm and stock, gather and sell the crops, and account to the Court.

To this bill was appended a statement of the account of Ross & Son against Robenson, from the 1st of January, 1869, to the 17th of August, 1869, amounting to $8,305 16, creditedby "proceeds 11 bales cotton, " 1st January, 1869, * 1, 202 69. There are $2,609 81-100 of this accountcovered by "merchandize" and "freights, " without further specilcations; $2,533 46 is "balance from account of 1868" without...