Sutton v. Ford
| Decision Date | 18 January 1916 |
| Docket Number | 211. |
| Citation | 87 S.E. 799,144 Ga. 587 |
| Parties | SUTTON ET AL. v. FORD ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
By Civil Code 1910, § 4094, it is declared that: "No administrator or executor shall be authorized to sell the reversionary interest in the land set apart as dower during the lifetime of the widow, except it be necessary to pay debts."
(a) It was not a correct application of this rule to charge that "all property, real and personal, belonging to his [the deceased husband's] estate, and which is subject to the payment of his debts, must first be fully exhausted before the administrator can lawfully obtain an order from the court of ordinary authorizing him to bring to sale the reversionary interest in dower lands for the purpose of paying off debts owing by the estate of the deceased husband."
(b) Whether the charge on this subject, when taken in connection with its context and the entire charge, would require a reversal, were there no other errors, need not be decided.
The evidence did not authorize the court to submit to the jury the question of whether there were no unpaid debts of the estate at all.
(a) The ground of the motion for a new trial on this subject did not include an entire sentence; and the same is true in regard to one or two other grounds of the motion for a new trial. If there were no other error, such exceptions would not be considered favorably as causes for reversal; especially in view of the general charge.
Where a widow had dower assigned to her in certain land of her deceased husband, if the person, who was the administrator upon the estate, was also the agent of the widow, and, while acting within the scope of his authority as such he took advantage of his position as administrator to fraudulently obtain from the court of ordinary an order for the sale of land, including the land in which a dower had been granted and as to which there was a reversionary interest in the heirs, without any necessity so to do in order to pay debts but for the purpose of getting rid of the interest of the other heirs and vesting the entire title in the dowress, and carried this purpose into effect, the fact that the same person who was the agent of the dowress was also the administrator of the estate would not prevent application of the ordinary rule that a principal is bound by the knowledge of his agent while acting within the scope of his authority nor would the fact that as administrator he gave a bond for the proper performance of his official duties have that result.
(a) The charges complained of in the eighteenth, nineteenth, and twentieth grounds of the motion for a new trial were not absolutely accurate in expression.
There was no error in the charge complained of in the twenty-first ground of the motion for a new trial.
The surrender and satisfaction of an existing debt, if done bona fide, operates as a present consideration; and, if one who obtained a title by fraud conveys it to a third person in extinguishment and discharge of a pre-existing debt, the latter will stand as a "purchaser for value." The questions of bona fides and notice are open to consideration as in other cases of purchase from one alleged to have procured title by fraud.
(a) This does not conflict with the previous rulings of this court that, if the title to property has been procured from a person by fraud, the right of the seller to rescind the sale is superior to the right of a mortgagee who receives from the person committing the fraud a mortgage as security for an antecedent debt, without more.
None of the other grounds of the motion for a new trial, singly or together, show error authorizing the grant of a new trial. There was no error in the rulings in regard to evidence which were complained of. If there were any slight verbal inaccuracies in expression in one or two of the charges, they were of minor importance, and would furnish no cause for reversal.
This court declines to review and overrule the decision in McWhorter v. Ford, 142 Ga. 554, 83 S.E. 134.
Error from Superior Court, Worth County; E. E. Cox, Judge.
Action by P. Brooks Ford and others against R. L. Sutton and others. Judgment for plaintiffs, and defendants bring error. Reversed.
P Brooks Ford and others, alleging themselves to be heirs of W J. Ford, Sr., deceased, bought an equitable action against Rowena J. Ford, the widow of the decedent, and alleged to be his only other heir beside the plaintiffs, J. A. Hanes, as administrator of the decedent, and R. L. Sutton. It was alleged, among other things, as follows: The widow took dower in the lands of the decedent, and also became the guardian of the plaintiffs. Hanes was the brother and agent of Mrs. Ford, and conducted her farming operations for her. She became indebted in such operations, and Hanes entered into a scheme with her creditors, whereby the entire title to the dower land might be vested in her, so that she could place incumbrances thereon or make conveyances to them. Hanes, as administrator, accordingly made an application to the ordinary for leave to sell certain land, including the land in which dower had been assigned, alleging that this was necessary for the payment of debts and settlement with the heirs. No reference was made to the reversionary interest of the heirs, and this was fraudulently concealed from the ordinary. There was no necessity to sell the reversionary interest of the heirs in order to pay debts, they having been otherwise paid; and it could not be legally sold, during the existence of the dower estate, for settlement with the heirs. An order for the sale of the lands was fraudulently obtained. They were advertised for sale, the advertisement for the first time stating that they were sold subject to the dower. Hanes caused the land to be bid off for and in the name of Mrs. Ford for a grossly inadequate price, which was never paid or intended to be paid. He made her a deed to the land, and, in pursuance of his previous understanding, procured her to make a deed to Sutton for 75 acres of the land; and at his instance she made a mortgage on another part of the land to one Heinsohn to secure her individual debt incurred in farming. Later Heinsohn died, and she conveyed the land to his widow in payment of the debt. Fraud and collusion were charged as pervading the entire transaction. Sutton was charged with notice and knowledge of the facts, and with joining in the conspiracy. It was prayed that the judgment of the ordinary authorizing the sale be decreed to be of no effect so far as it affects the land in controversy and these parties; that the sale by the administrator be set aside, and his deed be canceled in so far as it purports to convey the reversionary interest; that, as against the plaintiffs, Sutton be decreed to have no greater interest in the land in controversy than the dower estate; and for general relief. By amendment it was alleged that certain other dower land had been conveyed to Sutton, who took with knowledge, and had conveyed it to others. Judgment was prayed against him for damages for having conveyed certain land to innocent parties. It is unnecessary to set out the answer of Sutton further than to state that, among other things, he denied being a party to any fraud or collusion, or having notice thereof, and claimed to occupy the position of an innocent purchaser for value. The jury found for the plaintiffs. The defendants moved for a new trial, which was denied, and they excepted.
Pope & Bennet, of Albany, for plaintiffs in error.
Clyde Forehand, of Sylvester, and Glessner & Park, of Blakely, for defendants in error.
LUMPKIN, J. (after stating the facts as above).
"All other property, real and personal, belonging to his [the deceased husband's] estate, and which is subject to the payment of his debts, must first be fully exhausted, before the administrator can lawfully obtain an order from the court of ordinary authorizing him to bring to sale the reversionary interest in dower lands for the purpose of paying off debts owing by the estate of the deceased husband."
By Civil Code 1910, § 4094, it is declared:
"No administrator or executor shall be authorized to sell the reversionary interest in the land set apart as dower during the lifetime of the widow, except it be necessary to pay debts." [87 S.E. 801] A comparison of the charge quoted above with the Code section will show that there is a difference between them. There might be some small items of property belonging to the estate which would be wholly insufficient to pay the indebtedness, and yet which would not have to be "fully exhausted" before an order could be lawfully obtained, authorizing the administrator to bring to sale the reversionary interest in the dower land, if this should be necessary for the payment of debts.
It was contended by counsel for defendants in error that, if this charge was not correct when taken alone, yet the court elsewhere in the charge instructed the jury in accordance with the contention of counsel for the plaintiff in error and that this should not furnish ground for a new trial. There are two rules, each of which has its legitimate field of operation. One of them declares that, if an erroneous rule of law as to a material issue is charged, the error is not rendered harmless by a subsequent statement of the correct principle, unless the judge calls the attention of the jury to the incorrect statement, and retracts or modifies it, or, as has been elsewhere stated, unless the context shows that one charge was in fact a correction or modification of the other. Brush Electric Light, etc., Co. v. Wells, 103 Ga. 512, 30 S.E. 533; Rowe v. Spencer, 132 Ga. 426 (5), 429, 64 S.E. 468; ...
To continue reading
Request your trial