Opinion
37127.
DECIDED APRIL 18, 1958.
Claim. Fulton Civil Court. Before Judge Camp. February 13, 1958.
Joseph M. Brown, Marvin H. Shoob, for plaintiff in error.
Daniel Duke, contra.
1. A stipulation of fact which recites that an instrument was recorded on a certain date must yield to the evidence as shown by the instrument itself, introduced without objection,. which shows by the official entries of filing and recordation entered thereon and signed by the clerk of the superior court that it was in fact filed on a different date.
2. Where one holds a bill of sale to secure debt or a conditional sale contract with a promissory note attached, and the payments due thereon become in default, he may either sue on the note or foreclose the contract, or do both concurrently or at different times until the indebtedness evidenced and secured thereby is fully satisfied, and the pursuit of one of these remedies does not constitute an election such as to bar the subsequent pursuit of the other.
3. A court of ordinary has no jurisdiction in a year's support case to try conflicting claims of title to property, but can set aside to the widow only such property as the deceased husband held at the time of his death.
4. That the affidavit to foreclose the conditional-sale contract named as defendant a person deceased at the time the affidavit was made, was no ground for entering a final judgment for a third party claimant to the property levied on, but was at most ground for dismissing the levy.
DECIDED APRIL 18, 1958.
Pioneer Investments, Inc., through its attorney, made an affidavit in the Civil Court of Fulton County under the provisions of Code §§ 67-1601 and 67-701, et seq., to foreclose a conditional-sale contract on certain personal property, and alleged therein that Thomas Porter was indebted to the plaintiff in the sum of $769.50 on the contract, a copy of which was attached to the affidavit. Pursuant thereto and in accordance with the provisions of the aforesaid Code sections, an execution was issued and levied on July 12, 1957, upon the described personal property as the property of the named defendant and found in the custody of James W. Adrine and Ben Reid. Adrine and Reid filed a claim to the property in which they alleged that they held feesimple title to the property and that the plaintiff had no right to proceed with the foreclosure because of certain facts and circumstances as will be more fully set forth hereinafter. Counsel for the parties entered into a stipulation of fact which was introduced as the brief of evidence in the trial of the case before a Judge of the Civil Court of Fulton County sitting without a jury. Among other things, this stipulation recited that the conditional-sale contract was recorded in Fulton County on June 10, 1957; that the original recording form was identified as "Exhibit B"; that Porter was indebted to the plaintiff as assignee of the contract in the amount alleged; that the plaintiff had previously obtained a judgment against Porter in a suit on the note evidencing the indebtedness; that the original petition in that suit prayed for a special lien on the property here involved, but that the judgment taken was only a general judgment without any mention of a special lien; that the defendant died intestate on December 27, 1956; that his wife was appointed administratrix and that thereafter on January 31, 1957, appraisers set aside to her as a year's support certain property including the property herein involved; that the plaintiff made no objections to the year's support proceeding and that thereafter the defendant's wife sold and delivered to the claimants herein the property levied on. The original conditional-sale contract, together with the recording form thereon was introduced in evidence and the "suit papers" in the former suit against Porter were also introduced in evidence. The trial judge entered a judgment in which, after quoting the stipulations of fact in full, he found the property not subject, and adjudged that the claim of the claimants be sustained and that their bond be exonerated. The plaintiff made a motion for a new trial on the statutory general grounds which was denied, and the exception here is to that judgment.
It is urged by the defendant in error that the judgment in this case was a proper judgment for four reasons: First, because the stipulation of facts recited that the conditional-sale contract was not recorded until June 10, 1957, which was after the claimants had purchased the property on March 26, 1957, and that they were therefore bona fide purchasers of the property for value without notice; second, because the plaintiff had elected a prior inconsistent remedy in prosecuting the suit for a general judgment and that that suit was res judicata as to the right of the plaintiff to foreclose the conditional-sale contract; third, because it was estopped by its failure to object to the setting aside of the property in the year's support proceeding; and, finally, because the affidavit and execution herein were proceeding against Thomas Porter, who was deceased at the time the affidavit was made and the proceeding begun. We will dispose of these contentions in their order.
1. While we are aware of the rule that where a party has stipulated certain facts, he will not be heard to introduce evidence controverting those facts without first affording the opposite party notice that he proposes to controvert the facts so stipulated, yet this rule is applicable only where the position of the opposite party has been changed in reliance upon the stipulation and where to permit evidence contrary to the facts stipulated to be introduced would result in manifest injustice ( Johnson v. Wright, 19 Ga. 509, 512), and where evidence of a kind that is not subject to discredit (except upon direct evidence tending to so discredit it) and contrary to the facts stipulated is introduced without objection, the stipulation ought not to prevail against such uncontroverted evidence.
In the stipulations of fact in this case, the parties agreed that the conditional-sale contract was recorded on June 10, 1957. The original document with the entries of filing and of recordation signed by the clerk of the superior court was introduced in evidence, and this document showed that it was filed for record on June 10, 1955, and recorded on June 16, 1955. This document was duly identified as "Exhibit A," and the recording form identified as "Exhibit B" with the aforesaid entries thereon was introduced in evidence without objection. The record sent to this court contains photographic duplicates or photostats of these documents as a part of the brief of the evidence over the certificate of the trial judge certifying that they constitute a part of a true and correct brief of the evidence. The contention made in the brief of counsel for the defendant in error that these documents were not before the trial judge and were not considered by him in rendering his judgment and that his judgment ought not to be reversed on account of something which was not before him is not meritorious in view of this state of the record. While it is true that his judgment did seem to indicate that he did not consider these documents, the record shows that they were before him for his consideration, and in view of the official entries of filing for recordation, the stipulation of fact must yield. See Montrose Banking Co. v. Ford, 155 Ga. 222, 228 ( 116 S.E. 783).
2. It seems to be well established that a person holding a mortgage or a bill of sale to secure debt to personalty may pursue any number of consistent remedies to enforce the payment of the debt until the debt is satisfied, and that obtaining a common-law judgment on the note and foreclosing the mortgage or bill of sale are consistent remedies, and the pursuit of one does not constitute an election or abandonment of the other. See Juchter v. Boehm, Bendheim Co., 63 Ga. 71, 74 (1); Montgomery v. Fouche, 125 Ga. 43 (1) ( 53 S.E. 767); Farmer v. Baird, 35 Ga. App. 208 ( 132 S.E. 260); Allen v. Community Loan c. Corp., 81 Ga. App. 65, 67 (1) ( 57 S.E.2d 703). While it is true that the prayers in the plaintiff's petition in the former case were for a special lien on the property, the exhibits introduced here show that the plaintiff obtained merely a general judgment, and while he might have obtained a special lien in that action, he did not do so and it is, therefore, not a bar to his enforcing his rights under the conditional-sale contract. It follows that the plaintiff is not barred in this case from proceeding to foreclose the contract on this account, nor is he estopped by the judgment in the former proceeding. The principal case relied upon by the defendant in error, Coolidge v. Sandwich, 49 Ga. App. 564 (1) ( 176 S.E. 525), clearly distinguishes the ruling therein from the cases cited above and similar authority, and it is not authority for a ruling to the contrary.
3. A court of ordinary has no jurisdiction to pass upon conflicting claims of title on the hearing of an application for a year's support. Such jurisdiction lacking in the ordinary, it would have availed the plaintiff nothing to have objected to the proceedings to set aside a year's support. When the property herein involved was set aside to the widow as a part of the year's support, she acquired just such title in the property as her deceased husband had, and she acquired no greater title by reason of the judgment of the court of ordinary setting it apart to her. Dix v. Dix, 132 Ga. 630 ( 64 S.E. 790). Mrs. Thomas, having no greater title to the property than her husband had, and his title being subject to the outstanding and paramount title of the plaintiff as evidenced by the duly recorded conditional-sale contract, conveyed to the claimants only such title as she and her husband had, and the claimants' right to the property was subject to the outstanding conditional-sale contract of which they had constructive notice.
4. The only other contention remaining is the contention that the fi. fa. was void on its face because the defendant named in the affidavit was deceased. It does not appear on the face of the fi. fa. that Thomas Porter was deceased, and for this reason the fi. fa. was not void on its face, but the evidence as shown by the stipulation of fact shows that he was deceased. However, this was no ground for a judgment in favor of the claimants and fixing the title to the property in them free and clear of the claims of the plaintiff under the conditional-sale contract, for the most that can be said of this fact is that it constituted a mere procedural or technical defect bearing no relation to the merits of the case and would have at most authorized a judgment dismissing the levy. Bosworth v. Clark, 62 Ga. 286 (1); Morton, Bliss Co. v. Gahona, 70 Ga. 569 (1); Krutina v. Culpepper, 75 Ga. 602 (2); Morrison McRae v. Anderson, 111 Ga. 847 ( 36 S.E. 462); Rossiter c. Co. v. Carrollton c. Co., 5 Ga. App. 393 (1) ( 63 S.E. 233); Wright c. Co. v. Brown, 7 Ga. App. 389 (1) ( 66 S.E. 1034).
It follows, from what has been said above, that the judgment sustaining the claim and directing the release of the property to the claimants was not authorized and must be reversed. However, the evidence showing without dispute that the proceeding was instituted against Thomas Porter, who was deceased, rather than against his duly appointed administratrix, the trial judge should have entered a judgment dismissing the levy, and the judgment is accordingly reversed with direction that a judgment dismissing the levy be entered.
Judgment reversed with direction. Gardner, P.J., and Townsend, J., concur.