Tribble v. Anderson

• Decision Date: 28 February 1879
• Citation: 63 Ga. 32
• Parties: Tribble et al. v. Anderson.
• Court: Georgia Supreme Court

63 Ga. 32

Tribble et al. v. Anderson.

Supreme Court of the State of Georgia

(February Term, 1879.)

[COPYRIGHT MATERIAL OMITTED] Equity. Ejectment. Deed. Homestead. Usury. Landlord and tenant. Estoppel. Practice in the Superior Court. Jury. Charge of Court. Before Judge Bartlett. Jones Superior Court. October Term, 1878.

On December 4, 1876, Eliza M. Tribble, for herself and minor children, filed her application in the ordinary's office for a homestead in certain land and an exemption of personalty.

To the granting of said homestead and exemption Andersonfiled exceptions on the following grounds, to wit:

*1. The two mules mentioned in said schedule belonged to him, and could not be set apart as an exemption of personalty to said applicant—and said crop to the extent of $64.98, because S. T. Tribble, the husband of applicant, is indebted to him in that amount for rent of the land on which, and for the year, said crop was made.

2. The land described in said petition belongs to said Anderson, said Tribble, with the consent of his wife, having conveyed the same to him, by absolute deed, on the 10 day of January, 1873, for a valuable consideration, to wit: to secure a debt, etc. On the 10th day of January, 1876, said Tribble surrendered possession of said land to said Anderson, and rented the same from him and has held the same as his tenant over since. The money advanced by him was for the removal of an incumbrance to which the homestead was subject.

3. The said Tribble, on the 10th day of January, 1876, for a valuable consideration, waived, renounced, and gave up for himself and family, all right and claim to a homestead in said Anderson's favor.

This case was, by consent of parties, put on appeal to the superior court.

Anderson, in January, 1877, after the same was thus disposed of, sued out a possessory warrant for the recovery of said mules, and the officer seized them and turned them over to him, Tribble being unable to give bond.

On the 14th day of December, 1876, Anderson sued out a distress warrant against Tribble for the sum of $64.98, and had the same levied on 125 bushels of corn, 1, 000 pounds of fodder, 50 bushels cotton seed, one two-horse wagon and one set of harness. On the 3d day of January, 1877, after said application for homestead was put on the appeal by consent, he sued out a warrant to dispossess said Tribble of said land. Whilst all of said cases were pending in the county court, on the 10th day of January, 1877, counsel for Anderson, Tribble, and his wife, entered intothe following agreement: "In order to shorten said litigation and *to terminate the same as speedily as possible, it is agreed that all of said cases be consolidated, and put on the appeal to the April term, 1877, of Jones superior court. The parties in the meantime to file such pleadings as will make and determine all the issues on the merits."

At the April term, 1877, of said court, the parties, by the ap-proval of the court, entered into a second agreement to the effect following:

That Anderson should file his writ of ejectment to the present term of the court against S. T. Tribble for the recovery of said land. Tribble should acknowledge service and waive the twenty days' notice. Mrs. Tribble should file her bill returnable to the same term, enjoining said suits, and setting up her right to homestead, exemption, etc.

In pursuance of this last agreement, Anderson filed his suit for the recovery of said land. Mrs. Tribble, for herself and children, filed her bill, in which she alleged substantially the following facts: She is the wife of S. T. Tribble, and the mother of six minor children. During the years 1871 and 1872 her husband became indebted to Anderson $480.00, or some such sum, and by charging usurious and illegal rates of interest, never less than fifteen per cent., so manipulated said sum, that on the 10th day of January, 1873, it amounted to six hundred and thirty-five dollars and three cents; on said day Anderson procured from Tribble a note for said usurious debt, and at the same time, to secure said note, procured a deed, absolute on its face, to the land out of which she had applied for a homestead. She does not of her own knowledge know under what circumstaces her husband signed said deed, but she is informed and believes he was intoxicated, and did not understand his legal rights. Anderson and her husband brought the deed to her house, and the latter, who was drinking at the time, forced her to sign. There was no officer present to witness her signature, and the name of Middlebrooks attached thereto was put there afterwards, without her knowledge. Said deed was given only as a *security for debt and never intended to pass title. It was a part of said usurious contract, and void for all purposes as title. Anderson, under what authority complainant does not know, had said land advertised in the Macon Telegraph and Messenger for sale on the first Tuesday in December, 1876, in the town of Clinton. His influence over her husband was so great, he was afraid to disclose this fact to her, and she only discovered it by seeing the advertisement in the paper. He was so completely under the influence of Anderson he was afraid to assert his legal rights, and seeing that she and her children were about to be deprived of their home, she filed her application for homestead, and gave notice on the day of sale of the pendency of said application. Anderson proceeded to sell said property and became the purchaser himself.

Her application (Anderson having filed objections to the same) was put on the appeal by consent. After said case was thus disposed of, complainant hoped she would no longer be harrassed by said Anderson; but he well knowing her poverty, and that she was unable to give bond and security, sued out the possessory warrant, warrant to dispossess, and distress warrant, as above set out. hoping thereby to crush complainant and her family. The note purporting to be for rent, on which said distress war rant was based, was for usurious interest on said debt, and not for rent. Anderson under said illegal distress warrant, had all the produce of the family levied on and locked up, so that in the midst of a most terrible winter they were for a time deprived of their daily food—all of which was done by him for the purpose of harrassing complainant and her family, and driving them from said land, before their rights could be adjudicated under said application for homestead. Complainant was about to file her bill in equity to enjoin said proceedings to oust herself and family, when it was agreed that said matters should be suspended until the rights of all parties could be adjudicated under said application tor homestead, etc.

*After waiving discovery, complainant prayed for an injunction restraining said writ of ejectment until her rights could be adjudicated under the application for homestead, and for general relief.

Anderson answered denying all the material allegations, and by way of cross-bill charging that complainant and her husband were insolvent; that they were protracting said litigation for the purpose of keeping his land; that they were committing waste, etc., and praying for an injunction, and a receiver to take possession of said land, collect the rents, etc The cross-bill was answered.

Whereupon it was agreed by counsel for complainant and defendant, that the court should appoint J. J. Glover receiver to take possession of said land, and that he should rent the same yearly to S. T. Tribble for 750 pounds of cotton, and that he should hold the proceeds to abide the termination of the litigation.

S. T. Tribble filed the following pleas to the action of ejectment:

1. The general issue.

2, The deed upon which Anderson relies for recovery, to-wit, the deed of January 10, 1873, is infected with usury, is part of a usurious contract, and made to secure a usurious debt, and is therefore void, and conveyed no title to him, for that said deed purports to be given for the consideration of $635.03, which amount arose in the following manner: Defendant owed plaintiff $204.00, secured by bill of sale to mules; said sum was clue the 25th of December, 1872, and was dated January 4th, 1872. He also owed plaintiff $21.58. On the 25th day of December, 1872, these debts were settled by defendant's giving to plaintiff a deed to one hundred acres of the land in dispute, to secure $307.38, which sum arose thus: Plaintiff charged defendant fifteen per cent. on the $204.00 for twelve months, to which was added the sum of $25.58, making $256.18, but, as this amount wasto be paid twelve months thereafter, Anderson added thereto twenty per cent., making $307.38. *Afterwards plaintiff bought up a debt owed by defendant to one Ben. Hammond, for $270.00. He added this sum to the $307.38, making $577.38, upon which he charged ten per cent., making $635.08, or a sum very nearly that amount. Defendant says that said Anderson, at the time of taking said deed, also took a note from him for $762.68, which sum was reached by adding twenty per cent. to the $635.03.

Upon the trial of the issues thus formed, complainant introduced a deed from Thurmond to her husband bearing date December 29th, 1866, conveying to him the land in dispute. It was admitted that the land was in possession of Tribble at the time of the application for a homestead, and when the action therefor was brought by Anderson. Also, that Glover had been appointed receiver to take possession thereof, and that Tribble had rented from him for the year 1878.

Complainant here closed, and Anderson, the defendant to the bill, and plaintiff in ejectment, introduced the following evidence:

1. An absolute deed of conveyance from Tribble to him covering the land in dispute, made the 10th day of January, 1873, in consideration of $635.03, said deed witnessed by N. S. Glover, M. V. Tiner, and Thos. G. Middlebrooks, J. P., and also signed by Mrs. E. M. Tribble. At the bottom thereof was...