Sutton v. Ford

• Decision Date: 18 January 1916
• Docket Number: (No. 211.)
• Parties: SUTTON et al. v. FORD et al.
• Court: Georgia Supreme Court

87 S.E. 799

144 Ga. 587

SUTTON et al.

v.FORD et al.

(No. 211.)

Supreme Court of Georgia.

Jan. 18, 1916.

(Syllabus by the Court.)

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). [1] 1. The court charged the jury as follows:

"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."

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. 420 (5), 429, 64 S. E. 46S; Central Georgia Power Co., v. Cornwell, 143 Ga. 9, 84 S. E. 67. The other rule declares that, though a charge may appear to be improper when abstracted from its context, yet, if when considered therewith it is legal and proper, it is not a ground for a new trial. Stewart v. State, 66 Ga. 90 (3); Petersburg Savings & Insurance Co. v. Manhattan Fire Insurance Co., 66 Ga. 446 (9); City of Atlanta v. Champe, 66 Ga. 659 (2); Belcher v. Craine, 135 Ga. 73, 68 S. E. 839; and many other cases. In Cox v. State, 64 Ga. 375 (12), 377, 37 Am. Rep. 76, it was said:

"The charge of the court, like all other deliverances in human language, is to be construed together as one whole, and when one part of it plainly tempers and modifies another, and the ultimate sense and impression are correct, the true standard of practical sufficiency is attained."

To illustrate, if a case should involve the question whether the action was barred by the statute of limitations, and the judge should instruct the jury that it was barred if not brought within four years from the time when the right, of action accrued, and later in the charge should instruct them that the action was barred if not brought within two years from the time when the right of action accrued, and there was nothing either in the express language or in the context to indicate that one charge was intended as a correction of the other, the jury might be left with no guide as to which of the conflicting rules was correct, and the party injured by such a charge might properly claim that a new trial should be granted. On the other hand, although an excerpt from a charge standing alone might seem to give an erroneous rule, yet if, taken with its context, it is clear that the correct rule was given, and that the jury were not likely to have been misled, no new trial should be granted. Material error will cause a new trial; but substantial correctness, rather than mathematical accuracy, is required of the trial judge in instructing the jury.

We need not determine whether the charge above quoted would require the grant of a new trial if there were no other error, a reversal being necessary for other reasons.

It was contended by counsel for the plaintiff in error that the statute intended to limit the ordinary in authorizing an administrator to sell a reversionary interest, and not to limit the power of an administrator in selling it; that it was for the ordinary to determine whether there were unpaid debts; and that his judgment could not be reviewed by a jury at a later date by merely proving that there were no debts. It will be observed in this case, however, that the application by the administrator for order of sale stated that it was necessary for the payment of debts and settlement with heirs to sell certain lands, and apparently made no reference to the fact that a dower had been granted, or that it was sought to sell the reversionary interest of the heirs in such land for the reason that it was necessary to do so in order to pay debts. This was one of the grounds of attack upon the proceeding, because it was alleged that the administrator concealed from the ordinary the real facts. Whatever effect the judgment of the ordinary might have had, if the facts as to the dower and the reversionary interest had been stated in the application, and he had adjudicated, upon a full consideration, that there were debts, and that they were such as to render a sale of the reversionary interest of the heirs necessary for their payment, there was no such distinct allegation in this application, and the entire transaction is attacked as fraudulent.

2. The court charged:

"If there are no unpaid debts for which the estate of the deceased husband is legally liable, then there can be no lawful sale of the reversionary interest in dower lands."

Under the evidence, we do not think that the judge was authorized to submit to the jury the question of whether there were no unpaid debts at all against the estate. The evidence on this subject in the present record is different from that in the record in McWhorter v. Ford, 142 Ga. 554, S3 S. E. 134. The excerpt from...