Summary
In Leggitt v. Allen, 85 Ga. App. 280 (69 S.E.2d 106) (1952), the non-joinder of an essential party was raised by demurrer, and the trial court improperly overruled the demurrer.
Summary of this case from Partridge v. PartridgeOpinion
33826.
DECIDED JANUARY 23, 1952.
Partition; from Dooly Superior Court — Judge Gower. November 18, 1951.
Davis Friedin, for plaintiff in error.
L. F. Beddingfield, contra.
Where the petition for a statutory partition of land, by a sale of the whole interest in the land and a division of the proceeds, showed that a recorded deed to secure an unmatured debt was outstanding against the property sought to be partitioned, and it did not appear that the grantee in said deed had been properly notified of the application for partition, so as to bring such grantee into the proceeding, the petition should have been dismissed on the ground of the demurrer raising this point; and the error in overruling the demurrer on said ground rendered the further proceedings in the case nugatory.
DECIDED JANUARY 23, 1952.
Dempsey S. Brown, Bruce Brown, Mrs. O. L. Allen, and Mrs. Tom Harper applied to the superior court for partition of a described tract of land, containing 185.42 acres, more or less, and they alleged: that they were tenants in common with Willie H. Leggitt, Virginia Leggitt, and Woodrow W. Brown, each owning a one-seventh undivided interest in said land; that no provision had been made as to how said land was to be divided between the co-owners thereof; that the whole title to the said land was vested in the applicants and the named defendants as the sole surviving heirs at law of Amory C. Brown, their brother, who died intestate on October 21, 1948; that the applicants and the defendants are all sui juris and under no disabilities; that, on December 6, 1948, the court of ordinary entered an order declaring that no administration on the estate of Amory C. Brown was necessary; that, by virtue of said order, the applicants are estopped to administer the estate of their deceased brother for the purpose of making distribution among his heirs at law; that the interest of the cotenants in said land is unrepresented, there being no one in active charge of the same; that, on October 28, 1947, Amory C. Brown encumbered said property with a deed to secure debt to Mutual Benefit Life Insurance Company for a loan of $5000 principal, said deed providing for payments of $250 on November 1 of each year from 1948 to 1967, with interest at 4% per annum on the unpaid principal; that, on November 1, 1950, the unpaid principal will be $4500, and there will be due on said date a principal instalment of $250, and interest of $179.74; that the 1949 and 1950 taxes on said lands have not been paid and no return of the property has been made for these years; that no accounting of the rents and profits to the several cotenants has been made since the death of Amory C. Brown; that it is impossible to make a fair and equitable division of the property by metes and bounds by reason of the improvements thereon, and because the value of the entire property would be depreciated by such a division; that the applicants have given notice in writing at least twenty days before the date of this application of their intention to make the same, the notice having been duly served on Willie H. Leggitt, Virginia Leggitt, and Woodrow W. Brown; that the applicants present their title deeds for examination, and desire that the property be partitioned between the cotenants by a sale thereof by commissioners.
Virginia Leggitt and Willie H. Leggitt demurred to this application on the grounds: (1) that Code § 85-1511, under which the application was brought, is unconstitutional in that it deprived the demurrants of their rights to a trial by jury of the issue of whether a division in kind should be made; (2) that it was not alleged that Mutual Benefit Life Insurance Company, holder of a paramount title to the property as evidenced by the alleged deed to secure debt, had been notified of the application or made a party thereto; (3) that the allegations as to the necessity for partition by sale are conclusions of the pleader unsupported by the facts alleged; and (4) that no cause of action is set forth. This demurrer was overruled, and the demurrants excepted pendente lite.
The court appointed three commissioners to ascertain whether a division by metes and bounds or by a sale of the lands and division of the proceeds would be more beneficial to the parties at interest. Virginia Leggitt and Willie H. Leggitt also objected to the return made by the commissioners, on the grounds: (1) that no lawful statutory partition could be made without joining Mutual Benefit Life Insurance Company as the holder of an encumbrance superior to the rights of the applicants; and (2) traversing the return of the commissioners by alleging that a division in kind would be practicable, provided the rights of the insurance company were properly represented in the proceeding. These objections were overruled, and the objectors excepted pendente lite.
After reciting that the three commissioners appointed had made their report to the court that a fair and equitable division of the lands in question could not be made by metes and bounds, by reason of the improvements made thereon, that the value of the land would be depreciated by such a division, and that it would be impossible and impracticable to divide the land into separate equal tracts, and further recommending that the land be sold and the proceeds divided among the common owners as their interest might appear — the court ordered that the described property be sold by the commissioners after advertisement; that the rights or interests of all parties be remitted to the proceeds arising from the sale, at which sale the parties were authorized to bid; that no deed would be made to the purchaser until the same should be confirmed by the court, at which time the parties interested were required to show cause why such confirmation should be granted or refused; that a copy of the order be mailed to Mutual Benefit Life Insurance Company; and that its lien be paid off in full from the proceeds of the sale of the property. Virginia Leggitt and Willie H. Leggitt excepted to this judgment, and assigned error thereon by reason of the antecedent rulings on their demurrer and their objections to the commissioners' return, and because the judgment was based upon fatally defective pleadings, without having made Mutual Benefit Life Insurance Company a party to the proceeding.
This case was taken to the Supreme Court, which ruled that the question of the constitutionality of Code § 85-1511 had been abandoned by the plaintiffs in error, and that there were no equitable features in the case, and transferred it to this court. Leggitt v. Allen, 208 Ga. 298 ( 66 S.E.2d 709).
This case originated by an application for statutory partition by sale of the described property and division of the proceeds therefrom among the tenants in common in proportion to their interests. Code, §§ 85-1504-85-1515. However the demurrer raised the question of whether such a partition may be had where there is an outstanding paramount title to the property, and where the owner of such title has not been notified of the intention to make the application for partition by sale.
The petition shows that the deceased brother of the applicants and the respondents, who were his sole heirs, conveyed the property by a deed to secure debt to Mutual Benefit Life Insurance Company in 1947 for a loan of $5000, which was to be repaid in instalments of $250 per year, with interest on the unpaid principal at 4%, also payable annually. The petition alleges that the final instalment would be due in 1967.
"The party applying for the writ of partition shall give to the other parties concerned at least 20 days' notice of his intention to make application." Code, § 85-1506. It does not appear that any notice of the application for partition, as required by the statute, was given to the insurance company, which, as the grantee in the deed to secure debt, was a party concerned in whether it was to be "remitted to the proceeds" arising from the sale of the property, as prayed in the petition. Such notice is the equivalent of process in the statutory proceeding for partition, which is not in rem. Armstrong v. Merts, 76 Ga. App. 465 ( 46 S.E.2d 529); Anderson v. Anderson, 27 Ga. App. 513 ( 108 S.E. 907); Griffin v. Griffin, 153 Ga. 547 (2) ( 113 S.E. 161); Cock v. Callaway, 141 Ga. 774, 781 ( 82 S.E. 286). If a sale is to be made which might or might not divest the entire interest of the previous owners or lienholders, or if the petition casts doubt on the validity of the title to be acquired by a purchaser at the sale, so as to discourage bidders, the petition should be dismissed on demurrer. Hill v. McCandless, 198 Ga. 737 ( 32 S.E.2d, 774); Joel v. Joel, 201 Ga. 520, 522 ( 40 S.E.2d, 541); Adams v. Butler, 135 Ga. 405 ( 69 S.E. 559); Pace v. Shields-Geise Lumber Co., 147 Ga. 36 (2a) ( 92 S.E. 755). The petition here showed that a recorded deed to secure debt was outstanding against the property sought to be partitioned; and, it not appearing that the grantee in said deed had been properly notified of the application for partition, so as to bring said grantee into the proceeding, the petition should have been dismissed on the ground of the demurrer raising this point. The insurance company may have had a valid reason why the land should not have been partitioned and sold at that time, and it should have been notified and afforded the opportunity to interpose objections to the proceedings, if it so desired. For instance, it might have objected to the loss of future interest, to the sale of the land at a time when it may have been worth less than the amount of the debt, or to being "remitted to the proceeds" of the sale and thereby losing its rights in the property itself.
The trial judge erred in overruling the demurrer on said ground, which rendered the further proceedings in the case nugatory.
Judgment reversed. Felton and Worrill, JJ., concur.