Withers v. John Hopkins Place Sav. Bank

• Decision Date: 12 April 1898
• Citation: 30 S.E. 766,104 Ga. 89
• Parties: WITHERS v. JOHN HOPKINS PLACE SAV. BANK et al. TOPLIFF v. SAME.
• Court: Georgia Supreme Court

30 S.E. 766

104 Ga. 89

WITHERS v. JOHN HOPKINS PLACE SAV. BANK et al.

TOPLIFF v. SAME.

Supreme Court of Georgia

April 12, 1898

Syllabus by the Court.

1. If one result of the judgment prayed for in an equitable petition involving the title to realty would be to vest in the plaintiff a complete title thereto, without making a payment to one of the defendants of the sum of $2,200, which payment the latter claimed was essential to plaintiff's acquisition of such title, it was a case involving more than $2,000.

2. Where such a case was instituted in a state court, and the only controversy therein was between the plaintiff on one side, and a named defendant on the other, and they were citizens of different states, the case was removable to the federal court, notwithstanding there was another defendant residing in the state where the action was brought, who had formerly been connected with the title to the property in controversy, but who had parted with all interest in the same before the action was brought.

3. Where a distress warrant issued by a justice of the peace was levied on land, and the defendant therein filed a "plea," which was subsequently dismissed by a judgment of the justice's court, and no exception thereto was taken, or where no direct defense of any kind was made against such warrant, there was not, in either instance, any such "case in court" as that an equitable petition to restrain the further progress of the distress warrant, and praying for further and independent relief as to matters over which the magistrate's court had no jurisdiction, could be regarded as a mere ancillary proceeding. On the contrary such petition should be treated as the beginning of a new distinct, and original action.

4. There was no error in adjudging that the present cases were lawfully removable to the circuit court of the United States.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Petition by Mrs. K. M. Withers and by John A. Topliff against the John Hopkins Place Savings Bank and others to enjoin a distress for rent, and to remove a cloud from title. From a judgment granting a motion to remove the case to the United States court, plaintiffs bring error. Affirmed.

Anderson Felder & Davis, for plaintiffs in error.

King & Spalding, for defendants in error.

LITTLE J.

The present cases, namely, Withers against John Hopkins Place Savings Bank et al., No. 48 Atlanta circuit, and Topliff against the same defendants, No. 47 Atlanta circuit, each involving a similar state of facts, and consequently resting for determination upon like principles of law, were argued together in this court, and in dealing with them, for the sake of brevity and convenience, reference will be made only to the former as they are set out above.

The Atlanta Land & Annuity Company (hereafter referred to as the "Annuity Company") owned 14 building lots in the city of Atlanta. On March 19, 1885, that company entered into a contract with the Atlanta Land & Improvement Company (hereafter referred to as the "Improvement Company"), whereby the owner leased to the latter, for a period of 99 years, the said several lots, and the Improvement Company agreed, in consideration of said lease to pay to the Annuity Company, its successors and assigns, a yearly rental of $110 for each of said lots, each lot being severally liable for this sum as rent. It was provided, further, that if, at any time, the rent of any lot should be 60 days in arrears, the Annuity Company would have the right to re-enter and repossess the lot for which default was made until the rent, interest, and expenses should be paid, or to distrain for such rent at any time after it became due and remained unpaid. The Annuity Company stipulated, further, that, at any time during the continuance of the lease, it would execute to the Improvement Company, its successors and assigns, a new lease for a similar period, and on the same terms, for any one of said lots not forfeited for nonpayment of rent; and that the Improvement Company should also have the right to extinguish the ground rent upon each lot by tendering and paying to the Annuity Company $2,200, on which tender the latter would execute to the former a good and sufficient deed to the reversionary interest in fee simple. Subsequently, the Annuity Company assigned its rights under and interest in this contract, and also conveyed the fee in the property in question, to one Seeger, trustee, who, in turn, made a like assignment and conveyance to one Rosenthal; and the latter assigned such contract, and conveyed title to the John Hopkins Place Savings Bank, of Baltimore, Md. (hereafter referred to as the "Bank"). Mrs. K. M. Withers, who claimed as purchaser under the Improvement Company, occupied a house which had been erected on one of the lots by the Improvement Company, and failed to pay the rent of such lot as stipulated in the original lease; whereupon, on April 13, 1897, the Bank sued out a distress warrant against her for this rent, to which it claimed to be entitled as assignee of the contract between the Annuity Company and the Improvement Company, and had such distress warrant levied on the interest of Mrs. Withers in the lot occupied by her. When the distress warrant was levied, she filed in the justice's court a "plea" denying that she owed the plaintiff anything as rent or otherwise. This plea was dismissed on May 14, 1897. Mrs. Withers then brought her equitable petition against the John Hopkins Place Savings Bank, Paul A. Seeger, trustee, J. S. Rosenthal, the Atlanta Land & Annuity Company, the Atlanta Land & Improvement Company, and the sheriff of Fulton county (in whose hands the distress warrant was lodged). In such petition she alleged that the defendant in error was a corporation of the state of Maryland, and had no office or place of business in the state of Georgia; that the said Bank claims to be the assignee of the reversion to the lot levied on under the distress warrant; that such claim is based on the following state of facts: On March 19, 1885, the Annuity Company executed a deed which purported to convey to the Improvement Company the 14 lots heretofore referred to, for the term of 99 years; that the Improvement Company covenanted to pay the rents of all of said lots and all taxes thereon; and set out the further stipulations contained in the original lease as hereinbefore referred to. She further alleged that both the Annuity Company and the Improvement Company were chartered by the superior court of Fulton county at the same time, to wit, May 2, 1884; that the incorporators of each of said companies were the same individuals; that the alleged purpose of the said companies was to trade in real estate, ground rents, etc.; and she charges that they were formed for an illegal purpose,--that is, to create an estate in lands forbidden by law and contrary to public policy; that the officers and directors of each company were the same individuals; that the Bank claims to be the assignee of the Annuity Company under conveyances from the latter company to Seeger, trustee, from Seeger to Rosenthal, and from the latter to the Bank; that both the Annuity Company and the Improvement Company have long since ceased to transact business of any kind, and have no place of business or corporate existence in this state; that Rosenthal, who is a citizen of Maryland, has been the only president which either of the companies has had; and that there is no officer of either of said companies in Georgia on whom service can be made. She further alleges that she became the owner by purchase of one of said lots, to wit, lot No. 1, for which she paid $4,350; that she holds under title from Mrs. Brockett who purchased the lot from the Improvement Company. She shows that the lot cost the Annuity Company but $277.50, and that the house she occupies on said lot did not cost the Improvement Company more than $3,000. She alleges that the reservation of ground rent by the Annuity Company, which the Improvement Company attempted to preserve in its deed to Mrs. Brockett, is null and void, because it violates the rule against perpetuities, and is contrary to public policy. She avers that the claim of the Bank for rent against her is a cloud upon her title. She denies that the interest of the Annuity Company has ever been legally transferred to Seeger, trustee. She alleges that the distress warrant is in the hands of the sheriff for sale of the property. And she prays that the bank be enjoined from further proceeding with the distress warrant for rent; that the claim for ground rent referred to in the lease from the Annuity Company to the Improvement Company be decreed to be a cloud upon her title; and that such claim and stipulation be canceled by proper decree. She prays that service may be made upon the Bank, Rosenthal, Seeger, trustee, the Annuity Company, and the Improvement Company by publication, and that the officer (the sheriff of Fulton county) be enjoined from executing the distress warrant. On presentation of this petition, a rule nisi was granted, calling on the defendants to show cause before the judge of the superior court on a given day why the injunction should not issue as prayed for, and the further progress of the distress warrant was temporarily restrained. Service of the rule nisi was made upon the attorney of the Bank, and upon J. W. Nelms, sheriff of Fulton county. Without further action being had by the court on this petition and the rule nisi, the defendants in error, on the 25th day of June, 1897, tendered a petition and bond, framed and executed in terms of the statute, for the removal of said cause from the superior court of Fulton county, in which it was then pending, to the circuit court of the United States for...