White v. First Nat. Bank Of Claxton

• Decision Date: 09 February 1932
• Docket Number: No. 8470.,8470.
• Citation: 162 S.E. 701,174 Ga. 281
• Parties: WHITE et al. v. FIRST NAT. BANK OF CLAXTON.
• Court: Georgia Supreme Court

174 Ga. 281

162 S.E. 701

WHITE et al.

v.FIRST NAT. BANK OF CLAXTON.

No. 8470.

Supreme Court of Georgia.

Feb. 9, 1932.

Syllabus by the Court.

1. Although a foreign will may not be admissible as muniment of title upon which a recovery in ejectment may be had, nevertheless the judgment of a court of competent jurisdiction in a sister state, when properly certified in accordance with the acts of Congress (U. S. Acts May 26, 1790, 1 Stat. 122, and March 27, 1804, 2 Stat. 299, Rev. St. § 905), embodied in section 5824 of the Code of 1910 and in 28 USCA § 687, is admissible and competent evidence to show who was the executrix of a purported will and to verify this and similar circumstances already adjudicated, which may be material to the issues in a cause pending. Section 3894 of the Civil Code of 1910, requiring certified copies therein referred to to be filed before foreign executors shall be entitled "to use the processes and remedies prescribed by the laws of this State, " does not relate to the admission in evidence of certified copies of letters testamentary of such executors. Heatley v. Long, 135 Ga. 153 (4), 68 S. E. 783.

2. The objections to the admission of the four newspapers containing the advertisement of the sale of the land in controversy, (1) that the testator's will did not authorize or empower the executrix of his will to exercise the power of sale, and (2) that it was not shown that she was the executrix of Joseph E. Warbasse, are without merit. Both contentions are decided adversely to the plaintiff in error by the ruling announced in the opinion.

3. The assignment of error presented in the third ground of the amendment to the motion for new trial is without merit.

4. The transfer or assignment by Elizabeth F. Warbasse of the evidence of indebtedness and of the power of sale involved in this case did not convey, or purport to convey, to the bank the title to the land sought to be recovered in this action. The execution and delivery of this instrument, even if it had been executed by the executrix of the will of Joseph E. Warbasse (and it was not so executed), reversed title to the land sought to be recovered in the legal representative of Joseph E. Warbasse, and the instrument presented no bar to the exercise of the power of sale contained in the original security deed in behalfand for the benefit of the bank and in its aid in the collection of the claim which the bank had purchased. The assignment of the debt, etc., of March 25, 1930, failed to establish a paramount outstanding title adverse to that of the plaintiff, whereby the defendants might defeat recovery in ejectment.

5. Under the pleadings and the evidence, the court did not err in overruling the motion for a new trial.

Error from Superior Court, Evans County; H. B. Strange, Judge.

Suit by the First National Bank of Claxton against T. E. White and others. Judgment was entered for plaintiff, and defendants' motion for new trial was overruled, and defendants bring error.

Affirmed.

On December 4, 1919, Mrs. Theodosia E. White conveyed a tract of land in Evans County to Sessions Loan & Trust Company, to secure a loan of $2,500, the security deed containing a power of sale providing that Sessions Loan & Trust Company, "its agent or legal representative, successors or assigns, may and by these presents is authorized to sell" the property before the courthouse door after advertising, etc. On December 18, 1919, the grantee transferred this deed, together with the debt secured, title to the land described, and all right and power of the grantee thereunder, to Joseph E. Warbasse. On November 1, 1924, an agreement was made between Warbasse and Mrs. White, extending the maturity date of the loan to November 1, 1929. Some time prior to November 1, 1926, Warbasse died, leaving a will executed according to the laws of the state of New Jersey, attested by two witnesses, in which his wife, Elizabeth F. Warbasse, was named sole executrix. This will was probated in the office of the surrogate of Sussex county, N. J., and letters testamentary issued to Mrs. Warbasse. On March 25, 1930, Mrs. Warbasse executed to the First National Bank of Claxton the following instrument: "Know all men by these presents, that I, Elizabeth F. Warbasse, sole executrix of the last will and testament of Joseph E. Warbasse, deceased, of the town of Newtorn, in the County of Sussex and State of New Jersey, party of the first part, for and in consideration of the sum of $1,500 to me in hand paid by the First National Bank of Claxton, in the County of Evans and State of Georgia, party of the second part the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer, and set over, unto the said party of the second part, a certain indenture of mortgage, or loan deed, bearing date December 4, 1919, made by Theodosia E. White to Sessions Loan and Trust Company, and recorded in the clerk's office of the superior court of Evans County, Georgia, in Book 3, folio 535, &c, which said mortgage or loan deed was assigned and transferred by said Sessions Loan, & Trust Company to said Joseph E. Warbasse by deed of assignment dated December 18, 1919. Together with the bond or obligation therein described and the money due and to grow due thereunder, with interest. To have and to hold the same unto the said party of the second part, its successors or asigns, for its and their use forever; subject only to the proviso in the said indenture of mortgage or loan deed mentioned. And I do hereby make, constitute, and appoint the said party of the second part my true and lawful attorney, irrevocable, in my name, or otherwise, but at its proper cost and charges, to have, use, and take all lawful ways and means for the recovery of all the said money and interest, and in case of payment to discharge the same as fully as I might or could do if these presents were not made. And I do hereby covenant, promise, and agree to and with said party of the second part that there is now due and owing upon the said bond and mortgage or loan deed the sum of $2,500 of principal, together with interest thereon from May 1, 1928. In witness whereof, I have hereunto set my hand and seal the 25th day of March, in the year of our Lord 1930.

"Elizabeth Fellows Warbasse Sole Executrix of the last Will and Testament of Joseph E. Warbasse, deceased. [Seal]

"Signed, sealed, and delivered in the presence of: Mary L. Ray."

On the first Tuesday in May, 1930, Mrs. Warbasse, as sole executrix of the will of Joseph E. Warbasse, sold the land in question at public outcry as provided in the security deed executed by Mrs. White. The First National Bank of Claxton being the purchaser, and on May 13, 1930, executed to the bank a deed to the property, "as sole executrix of the last will and testament of Joseph E. Warbasse, deceased, as attorney in fact for Mrs. Theodosia E. White." This land was occupied by Mrs. White and her husband, R. K. White, and her son, H. H. White, and they refused to deliver possession to the bank. The bank filed a petition against Mrs. White and her husband and son, seeking to prevent the defendants from further using said land and collecting the rents and profits therefrom, and praying that a receiver be appointed for the property until the trial of the case, that said land be decreed to be the property of the petitioner, and that possession thereof be delivered to it, and that it have judgment for mesne profits. The defendants answered, denying that the security deed executed by Mrs. White to Sessions Loan & Trust Company authorized the executrix of Joseph E. Warbasse to sell the land, and alleging that the deed made in pursuance of thesale by the executrix was void. They further answered that "on the 25th day of March, 1930, the said Elizabeth F. Warbasse, as the alleged executrix of the will of Joseph E. Warbasse, for a consideration of $1500, made and delivered to the plaintiff as assignment and conveyance of all the alleged interest and power of sale of Joseph E. Warbasse in and to the lands sought to be recovered by the plaintiff in this case, and that thereafter said alleged executrix was without power of authority to advertise and sell said lands on the first Tuesday in May, 1930, and that the alleged public sale thereof to the plaintiff on the first Tuesday in May, 1930, and the deed to the plaintiff pursuant to said sale are void."

On the trial B. G. Tippins testified that he was president of the First National Bank of Claxton, and that the bank purchased the land in dispute at the sale by Mrs. Warbasse as executrix under the power of sale in the security deed; the deed made by Mrs. Warbasse to the bank being dated May 13, 1930. Plaintiff introduced the security deed from Mrs. White to Sessions Loan & Trust Company, the note thereby secured, the assignment by Sessions Loan & Trust Company to Joseph E. Warbasse, dated December 18, 1919, and duly recorded, conveying the security deed of Mrs. Theodosia E. White, the debt thereby secured title to the land therein described, together with all right, title, and interest of said company thereunder, including the power of sale in said deed to secure debt. Also extension agreement between Joseph E. Warbasse and Mrs. Theodosia E. White, extending the maturity date of the loan from November 1, 1924, to November 1, 1929. Also certified copies of the will of Joseph E. Warbasse, the judgment admitting it to probate the letters testamentary issued thereon, attested by the clerk of the surrogate court under the seal of that court, and accompanied by a certificate that said attestation was in due form, made by the judge of the Surrogate Court of Sussex county, N. J. This will was not of record in the office of the clerk of the superior court of Evans county, Ga., in the records of deeds. This will appointed Elizabeth F. Warbasse as sole executrix. Also four copies...