Opinion
16812.
OCTOBER 11, 1949.
Ejectment. Before Judge Crow. Mitchell Superior Court. July 7, 1949.
J. D. Gardner and A. H. Gray, for plaintiff.
Robert Culpepper Jr., for defendants.
In an action of ejectment, an amendment to a plea in bar — in which it is asserted that title to the land in question was adjudicated in a former action in favor of a predecessor in title of the defendants and against another, and it appears that such other person was not a party to the present action, and that the plaintiff in this action was not a party to the former action, and it further appears that legal title to the land involved was not determined in the former action because the defendant therein had only an equitable interest — was insufficient to bar the present action in ejectment, and the court erred in overruling the plaintiff's demurrers to said amendment.
No. 16812. OCTOBER 11, 1949.
This case is here on a bill of exceptions, which assigns error on the trial court's orders: first, in overruling demurrers filed by the plaintiff to an amendment to a plea of res adjudicata or in bar of the defendant; and, second, in overruling the plaintiff's motion for a new trial as amended.
The case originated when James M. Poore filed a suit in ejectment in the fictitious form in the Superior Court of Mitchell County against A. T. Rigsby et al., to recover a tract of land located in land lot 158 in the 10th district of Mitchell County. Counsel for both parties agree that the land in dispute comprises a tract of 45 acres.
The plea in bar, denominated as a plea of res adjudicata, alleged that, in an action for land instituted in Mitchell Superior Court by Hubert Hinson against J. L. Palmer in September, 1944, to recover a tract of about 45 acres of land in land lot 158 in the 10th district of Mitchell County, judgment was rendered in October, 1945, in favor of Hinson, and said judgment was affirmed by the Supreme Court, which judgment became final on November 6, 1945. Palmer v. Hinson, 201 Ga. 654 ( 40 S.E.2d 526). It was alleged that the present plaintiff was in privity with J. L. Palmer, and was estopped by the judgment rendered against him in favor of Hinson. The plea attached, as exhibits, the pleadings and judgment in the case of Hinson v. Palmer. There was no demurrer to this plea. When the case came on for trial in October, 1948, the defendants filed and the court allowed subject to demurrer an amendment to the plea in bar. In paragraph 4-A of the amendment, it was alleged: that the plaintiff was estopped by the judgment in the Hinson-Palmer case, for the reason that the present plaintiff is only a nominal party in this action, and J. L. Palmer is the real plaintiff; that James M. Poore has no real interest in the subject-matter of the present suit, but is acting as agent of J. L. Palmer in a fraudulent conspiracy to evade and avoid the judgment pleaded in bar; that, at the time of the litigation and judgment in the Hinson-Palmer case, involving the same issues as are involved in the present case, there was outstanding a lien in favor of the Federal Land Bank, "apparently embracing the property involved in this action, and other property, but the latter [the Federal Land Bank] was not made a party to said suit for the reason that the issue therein did not involve title, but only boundary between coterminous land owners, and the party in possession, J. L. Palmer only [was] made a party to said proceedings"; that J. L. Palmer conceived the idea of having said Land Bank foreclose its paper, and conspired with J. M. Poore to buy in the property at such sale and bring suit to recover the land involved in the Hinson-Palmer suit, under the pretense that J. M. Poore would not be bound by the former judgment against the real plaintiff, J. L. Palmer, inasmuch as he was not a party to said suit, or nominally in privity with J. L. Palmer; and that the Federal Land Bank foreclosed its lien, which had been executed to it by J. C. Palmer, and at the foreclosure sale an attorney for Hinson made a public announcement to the effect that title to the 45 acres had been litigated and won by Hinson and sold by him to the defendants, A. T. Rigsby et al. It was alleged in this paragraph that J. M. Poore did not invest any money in the property, but borrowed it from a son-in-law of J. L. Palmer; that J. L. Palmer remained in possession of the land sold by the Federal Land Bank except the 45 acres involved in the Hinson-Palmer suit, which 45 acres had been and was in possession of the defendants; and that, subsequently to the foreclosure, J. M. Poore had sold the land purchased at the foreclosure sale, except the 45 acres.
In paragraph 6-A of the amendment, it was alleged that, on July 29, 1940, J. C. Palmer executed a deed to secure a debt to the Federal Land Bank, which was the security deed foreclosed on April 4, 1947; that on June 15, 1942, J. C. Palmer conveyed the property described in the security deed to J. L. Palmer under a warranty deed; and that, "while the latter [J. L. Palmer] was the owner, and in possession, the litigation with Hinson was instituted and concluded, and after final judgment in said case the defendants purchased the land involved in the suit, without notice of any right in any other party, and went into possession as bona fide purchasers for value."
To this amendment the plaintiff filed demurrers, and among other grounds asserted that the amendment did not show any legal defense to the plaintiff's cause of action, and that the allegations were insufficient to show that the plaintiff was in privity with J. L. Palmer. The court overruled the plaintiff's demurrers, and he filed exceptions pendente lite, and in the bill of exceptions assigned error on the order overruling his demurrers to the plea in bar. The case was tried upon the issue made by the petition and the plea in bar. A verdict was returned for the defendants, sustaining their plea, and a judgment was entered dismissing the petition. The plaintiff filed a motion for new trial, and subsequently, and after said motion had been amended, the court overruled the motion as amended, and the present bill of exceptions was filed by the plaintiff.
The parties will be referred to in the positions in which they appeared in the trial court.
The first question before us is, whether the trial court committed error in overruling the demurrers of the plaintiff to the amendment to the defendants' plea in bar. In this plea, it was alleged that the plaintiff was bound by the former litigation between Hinson and Palmer, by reason of the plaintiff being in privity with one J. L. Palmer, who was the defendant in the former action involving the same land. From the defendants' plea, it appears without dispute that in the former suit the present plaintiff, J. M. Poore, was not an actual party, or a party by representation, nor was the Federal Land Bank a party to that action. At the time the former litigation began and ended, the Federal Land Bank held legal title to the 45 acres, which was a part of a tract of 175 acres that had been conveyed to it on July 29, 1940, by J. C. Palmer as security for a debt; and on June 15, 1942, J. C. Palmer executed a warranty deed to J. L. Palmer, conveying the same land which had formerly been conveyed by him to the Federal Land Bank, and the deed to J. L. Palmer recited the existence of said loan deed, and bound the grantee, J. L. Palmer, to payment thereof. It thus appears from the facts pleaded that James M. Poore does not claim title from J. L. Palmer. His claim of title is by virtue of being purchaser at the foreclosure sale, and under a deed executed by the Federal Land Bank as attorney in fact for J. C. Palmer. Therefore, the defendants cannot claim that the plaintiff is in privity with J. L. Palmer as a successor in title or estate, because it plainly appears that the plaintiff does not assert title by virtue of being a successor in title or estate to J. L. Palmer. So, if the defendants' contention, that J. M. Poore is in privity with J. L. Palmer, and therefore bound by the decree in the Hinson-Palmer ejectment suit, be sustained, it must be upon the allegation that, at the time J. M. Poore purchased the property at the foreclosure sale, he was acting as agent for and on behalf of J. L. Palmer, and by reason of such fact the actual party at interest as plaintiff in this case is J. L. Palmer, and not J. M. Poore. However, in order to sustain this contention, if it constitutes a valid plea, it would be necessary to show that the decree in the Hinson-Palmer action was one which settled the legal title to the 45 acres and determined that it was not in J. L. Palmer, but in Hubert Hinson, under whom the present defendants claim title.
Code § 33-119 provides as follows: "A judgment in ejectment shall be conclusive as to the title between the parties thereto, unless the jury find for the plaintiff less than the fee." This court, in construing this section and referring to the fact that this statute, which was enacted in 1855-56, and changed the prior law, said: "This changed the law, and made the judgment between the same real parties to the title conclusive against those parties, with the single exception that, if the fee was not involved, but a less estate, the claimant of the fee could sue again, though he had been defeated on a trial of an estate less than a fee in the same land." Parker v. Stambaugh, 71 Ga. 735, 736. Under the facts pleaded, at the time the former suit was instituted, the defendant therein, J. L. Palmer, had only an equitable interest or equitable title to the 45 acres involved in that action ( Cook v. Ga. Fertilizer c. Co., 154 Ga. 41 (2), 113 S.E. 145; Citizens Bank of Moultrie v. Taylor, 155 Ga. 416 (1), 117 S.E. 247); and the legal title to this tract at the time of said former action was in the Federal Land Bank, and it was such a title as would authorize a recovery in ejectment by the grantee in the security deed. Marshall v. Carter, 143 Ga. 526 (3) ( 85 S.E. 691). The security deed having been executed to the Federal Land Bank prior to institution of the former ejectment suit, that bank was not in privity with J. L. Palmer as to such action, and was not bound by the judgment in said ejectment case between Hubert Hinson and J. L. Palmer, not being a party thereto. Moody v. Vondereau, 131 Ga. 521 (3) ( 62 S.E. 821). It appears, therefore, from the facts stated in the defendants' plea, that at the time the final decree was entered in the former ejectment suit, the same could not have determined legal title to the land involved, for the reason that J. L. Palmer did not hold legal title thereto.
In Elwell v. New England Mortgage Security Co., 101 Ga. 496 ( 28 S.E. 833), A and B brought an action against S to recover certain land, and verdict and judgment were rendered in their favor. Before this action was commenced by A and B, the defendant S had borrowed money from X, and as security for payment thereof had executed a deed to the land in dispute. Subsequently to the judgment in the ejectment suit, X brought an action against S on the debt secured by the loan deed and recovered a judgment thereon, and while X was attempting to sell the property under the loan deed by levy and sale, a claim was filed by A and B. On the trial of the claim case, A and B offered in evidence the judgment which had been obtained in the ejectment suit against S, and this evidence was ruled out by the trial court, and in the motion for new trial error was assigned on this ruling. This court, after holding that a judgment against a party estops his grantee if the grant is subsequent to the judgment, and in holding that a judgment does not estop a grantee where the grant was prior to institution of the suit in which the judgment was rendered, said: "A case where the grantee takes the property before the commencement of the action on which the judgment is founded is within neither the reason nor the rule. The grantee and grantor are privies in estate, but as to acts done and relations formed by the grantor after the alienation of the property, the grantee is not bound. As to such acts and relations, subsequent to the grant, they are not in privity. After an absolute grant of my land to another, I can not, by act of mine or by submission to the rendition of judgments against me, lessen the interest vested in that other by the grant.
"This reasoning applies with equal force to the present case, where the deed was given to secure a debt, and we think therefore that, the deed having been made before the commencement of the action in ejectment against the grantor, the grantee is not concluded or estopped by the judgment. He is privy in estate only with respect to the estate at the time of the execution of the security deed or to what is the legitimate result of its status at that time. Mathes v. Cover, 43 Iowa, 512; Garrard v. Hull Tobin, 92 Ga. 787. . .
"The judgment offered in evidence was not binding on the defendant in error, the grantee in the security deed, and can not be of any probative value in this case in determining the facts decided by the suit on which it is founded. To prove the facts decided by it, such judgment was not competent or relevant evidence in this case, and when offered for that purpose it was properly rejected by the judge." Pp. 498-499.
The case of McCurry v. Robinson, 23 Ga. 321, involved a suit for specific performance to enforce a contract for the sale of land. The facts were: M purchased from R two tracts of land, the purchase-money to be paid in installments, for which he gave his notes, and R executed to him a bond for title. It was alleged that R sold and conveyed the land to Wood, who had full knowledge of the purchase of the property by M from R and of his possession and claim to the property. It was alleged that W had instituted an ejectment suit against M for the land and obtained a judgment in his favor, and was threatening to dispossess and evict him from said premises. The bill was demurred to for want of equity, and this court reversed the judgment of the trial court, which had sustained the demurrer and dismissed the action. This court said that the effect of the contract between M and R was to make R hold legal title to the land in trust for M, and therefore M had an equitable title to the land, and had the right to obtain the legal title by payment of the purchase-money, and under the allegations of the bill, W purchased the land with knowledge and notice of M's right. The question, the court said, was whether M lost his right by letting W obtain a judgment against him in the ejectment action. As to this, the court said: "He did not. His equitable title, all the title which he had, was one that he could not set up in a court of law. Therefore, the judgment in the ejectment suit decided nothing against that title." P. 324.
It would thus seem that under these decisions, if J. L. Palmer had succeeded in the ejectment action of Hinson against him, and Hinson or the defendants in this case had subsequently become the purchaser of the legal title held by the Federal Land Bank at the foreclosure sale, J. L. Palmer could not have pleaded the former judgment in a subsequent ejectment action instituted either by Hinson or his successors in title, the defendants in this case, for the reason that the former action did not determine the question of legal title. We are of the opinion that the facts alleged in the plea are insufficient to show that the decree in the Hinson-Palmer suit settled and determined the question of legal title to the land, or barred the action of the plaintiff in this case. It is therefore unnecessary to pass upon the contention of the defendants that the plaintiff in this action was the agent of J. L. Palmer.
Our ruling herein is confined solely to the questions made by the demurrer to the amendment to the plea in bar, and is not to be taken or construed as an adjudication of any other question or issue on the trial of the main case.
The trial court erred in overruling the demurrer of the plaintiff to the amendment to the defendants' plea in bar, and all further proceedings were nugatory.
Judgment reversed. All the Justices concur.