Summary
In Bowers, supra, a divorce agreement prohibited former husband from transferring his one-half undivided interest in real property without first offering it to his former wife at a sum not to exceed $3,500.
Summary of this case from Mansour Properties, L.L.C. v. I-85/GA. 20 Ventures, Inc.Opinion
17445.
ARGUED APRIL 10, 1951.
DECIDED MAY 15, 1951.
Equitable petition. Before Judge G. C. Anderson. Richmond Superior Court. November 17, 1950.
Peebles Burnside, for plaintiff.
Nathan Jolles, Curry Curry, and Max Rubenstein, for defendant.
1. Where no exceptions pendente lite were filed to a ruling excluding evidence, an exception to such ruling contained in the bill of exceptions, presented more than twenty days after the date of the ruling complained of, comes too late and can not be considered.
2. The trial court, passing upon all questions of law and fact in this partition proceeding without the intervention of a jury, did not err in ordering the commissioners appointed therein to convey all of the plaintiff's undivided one-half interest in the realty to the defendant upon receipt from her of the amount stated in a contract between the original cotenants.
No. 17445. ARGUED APRIL 10, 1951 — DECIDED MAY 15, 1951.
Mrs. Mamie McDonald Bowers filed in Richmond Superior Court, against Mrs. Ann G. Bowers, a petition for partition of described realty with buildings thereon, alleging that the property was jointly owned by the plaintiff and Mrs. Ann G. Bowers and could not be divided by metes and bounds.
The defendant in her answer averred substantially the following: On May 31, 1944, she and Alfred M. Bowers acquired the property as tenants in common. Pending a divorce and alimony proceeding, brought by the defendant against Alfred M. Bowers, he and the defendant entered into an agreement which provided that, in the event either joint owner should desire to sell the property, he or she would offer it to the other joint owner at a sum not to exceed $3500. In the final divorce decree, this agreement was made the judgment of the superior court, and the decree appears on the minutes thereof. Thereafter, the plaintiff acquired by deed of gift the one-half interest of Alfred M. Bowers. The obligation to offer the property to defendant is valid and binding upon the plaintiff; and she, having filed this proceeding to partition, has elected to sell the property, and the defendant, in accordance with the agreement and decree of court, accepts the offer to sell, and herewith tenders to the plaintiff the $3500 for her one-half undivided interest in the property. The defendant prayed that the court, sitting as a court of equity, frame such order as will meet the exigency of this case; that the court decree full and complete title to the property in the defendant, upon her depositing $3500 in the registry of the court in accordance with the agreement existing between the original tenants in common; that all title of Alfred M. Bowers and the plaintiff be decreed to be in the defendant; and for general relief.
On the trial of the case by the judge without a jury, there was uncontradicted evidence to the following effect: Alfred M. Bowers was the husband of the plaintiff and the former husband of the defendant. He and the defendant each formerly owned a one-half undivided interest in the property, and entered into the agreement whereby, if either desired to sell, he or she would offer the property to the other at a sum not to exceed $3500. Under said agreement, the defendant was to have the privilege of occupying one apartment in the dwelling and Bowers was to have the privilege of occupying another apartment. The defendant had thereafter been in possession of her apartment. Bowers moved out of his apartment and rented it to a tenant, but the defendant has been collecting rent therefrom. Subsequently, Bowers conveyed his one-half undivided interest in the property to the plaintiff, his present wife, by deed of gift in order that she might bring the action for partition. There was also documentary evidence, including copies of the agreement, and of the divorce proceedings, together with the decree making said agreement a part thereof.
During the above hearing, which was held on October 26, 1950, the court refused to allow a witness for the plaintiff to answer a question concerning the value of the property.
On November 17, 1950, the court decreed that the commissioners appointed in the partition proceeding convey all of the plaintiff's undivided one-half interest in the realty to the defendant upon receipt from her of $3500.
To the above ruling and to the exclusion of property values from the evidence the plaintiff excepted in a direct bill of exceptions.
1. In the bill of exceptions error is assigned because of the exclusion of property values from evidence as follows: Counsel for the plaintiff asked his witness, Alfred M. Bowers: What is the value of the property which is sought to be partitioned? Counsel for the defendant objected on the ground that the value of the property would be immaterial. The court sustained the objection. This evidence was excluded during the hearing on October 26, 1950.
The bill of exceptions was not presented to the trial court until December 4, 1950, and was not signed until December 11, 1950. No exceptions pendente lite were filed. Accordingly, the exception comes too late and presents no question for consideration by this court. Code (Ann. Supp.), §§ 6-902, 6-905; Good v. Good, 205 Ga. 112 (2) ( 52 S.E.2d 610), and cases cited; Pugh v. Moore, 207 Ga. 453 (3) ( 62 S.E.2d 153).
This is a partition proceeding instituted under Code § 85-1501 et seq. Counsel for the plaintiff state in their brief that the main difference between the parties seems to be the construction of the written agreement, which provides that, if either party should desire to "sell" his interest in the property, he would offer it to the other at a sum not to exceed $3500. The insistence is that Alfred M. Bowers having "given" his interest in the property to the plaintiff, she was under the law authorized to ask for a partition of the same and, upon showing that a fair and equitable partition cannot be had in kind or by metes and bounds, she properly prayed that the court appoint commissioners to sell the same and divide the proceeds. There is no merit in this contention.
"He who takes with notice of an equity takes subject to that equity." Code, § 37-115. "Possession of land is notice of whatever right or title the occupant has." § 85-408. In Rhodes v. Lane, 202 Ga. 608 (2), 610 ( 44 S.E.2d 114), this court said: "If, after an opportunity to purchase the interest of the petitioner under the terms of the contract, the defendant Rhodes should refuse to avail himself of this privilege, the right to partition the property would then arise. It is generally held that a party will not be decreed partition if it would be contrary to his own agreement."
Under the foregoing principles, the trial court, passing upon all issues of law and fact without a jury, was authorized to find from the pleadings and evidence that the plaintiff took, not as a bona fide purchaser but with notice of whatever equities the defendant had in the property, and that, by filing the petition for partition, she elected to sell her interest in the property. Alfred M. Bowers was bound by his agreement, which was duly made the decree of the superior court and entered on its minutes; and since he could not convey any greater interest than he had, the plaintiff is likewise bound by his agreement.
Accordingly, the trial court did not err in ordering the commissioners appointed in the partition proceeding to convey all of the plaintiff's undivided one-half interest in the realty to the defendant upon receipt from her of $3500.
Judgment affirmed. All the Justices concur.