188 Ga. 678 | Ga. | 1939
H. B. Brinkley, as trustee of Bethany Baptist Church, brought the present action against George R. Newell and Wright Smith, seeking to have a certain deed executed by the plaintiff and Smith to Newell, as trustee for said church, canceled as a cloud upon the church’s title to said property, and to enjoin Newell “from asserting or claiming title to said church property,” and '“from instituting any distress or legal proceedings for the purpose of dispossessing said congregation from said church building and property.” The petition alleged, that Newell became pastor of said church in November, 1926, and that during his pastorate the congregation of said church undertook to improve the church lot by constructing thereon a church edifice; that Newell and Smith entered into a conspiracy to take from the church a note and deed, and Smith persuaded the plaintiff to join with him (Smith) in the execution of said note and deed on May 15, 1930; that the plaintiff did not actually know the standing of the indebtedness or know personally the accuracy of the claims of Newell, but relied on the representations of Smith, his cotrustee; that the representations of Newell and Smith as to said indebtedness were false in that the church was not in fact indebted to Newell in any sum; that immediately after acquiring said note and deed Newell abandoned his pastorate and proceeded to file suit on said note; that a judgment was rendered and a sale of said’property made by the sheriff to Newell as the highest bidder; that Smith “did aid and abet and conspire with said . . Newell in securing said judgment and in procuring said sale, by stating to'your petitioner and to the members of the church that the purpose of said sale was to perfect title to said property, so that the church could build a new church building thereon without the aid of outsiders, and that it was the intention of said . ; Smith and said . . Newell, after getting title to said property, to secure the finances necessary for completing said church;” that defendants carried out none of their promises, but the church was finished by the congregation; and that Newell is now wrongfully claiming title to said church. An interlocutory injunction was refused, and exceptions were taken.
Newell and Smith filed answers. Newell alleged, in substance, that the deed in question was executed to him by Smith and Brinkley to secure a debt of $500, due him by said church, after they
At the hearing the pleadings of all the parties were introduced in evidence. The plaintiff submitted affidavits of himself and others, the contents of which made out no case stronger or different from that made in the petition. The plaintiff deposed that during the years 1935, 1936, and 1937, about $350 was turned over to Newell. This was between the time of the repurchase of the property by the church and the foreclosure under the power of sale, which was finally consummated on July 5, 1938. Smith deposed that the $500 represented money actually loaned by Newell to the church to aid in the completion of the church building, and denied any wrong-doing in any of the transactions between the trustees of the church and Newell. Newell deposed that after he resold the property to the church in 1935 for $2000, he was paid only $258.04, which represented partial payment of the agreed down payment and interest thereon under the contract of sale.
The evidence need not be further detailed. It seems clear from the mere statement of the above facts, that there was no error in refusing an injunction. The plaintiff, as trustee for the Bethany Baptist Church, is in no position to attack the original note and security deed on the grounds stated. As appears from the above statement, Newell filed suit on the note and prayed for a special lien on the land. The plaintiff and other trustees of the church appeared and defended the suit on substantially the same grounds set up in the present petition. The jury returned a verdict in favor of Newell, and a judgment was rendered accordingly. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have. been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.” .Code, § 110-501... It further appears that the plaintiff together with the other -trustees, on July 9, 1938, entered into a contract on behalf of. the church, leasing the property in question .from Newell, and thereby, .became a tenant of .Newell. The Code, § ,61-10.7¿ declares .that “The
Judgment affirmed.