Byrom v. Varner

136 Ga. 780 | Ga. | 1911

Atkinson, J.

(After stating the facts.) This case, we think, turns upon the question whether the claimants were concluded- by the judgment rendered in the case brought by Mrs. Varner for herself and as next friend and guardian ad litem for all of her minor children, among whom were two of the claimants, and Paul H. Varner, of whom the third claimant is the sole heir at law, against Julia M. Gunn, the intestate of the plaintiff in error, and other defendants. In that case the order granted by the superior court to the trustees of Anne Varner and Jane Walker to cell the entire interest in the lands in question was attacked and sought to be set aside on the ground that Mrs. Varner’s consent thereto was obtained through coercion on the part of her husband. The deed from the trustees to Daniel F. Gunn, made in pursuance of such order of sale, was also attacked on the ground of collusion between Varner and Daniel F. Gunn, the purchaser. The deed purported to convey the fee in the land; and it is evident, from the order of sale and the terms of the deed and the consideration purporting to have been- paid, that a sale and conveyance of the entire interest in the land pould be made and the proceeds reinvested by the trustees in other property under the same trusts, conditions, and limitations. It further appears that Mrs. Varner in bringing that action believed that her children, all of whom were then minors, were interested in this action. In the bill there was a recital that they were necessary parties, and a request that the judge should appoint a guardian ad litem to represent their interests in the suit. The judge appointed Mrs. Varner as guardian ad litem for the minors, reciting in the order that it appeared that they were necessary parties; and whether they were such was a question to be then determined by the court. It appears from the issues made by the answers of the defendants in that case, that the defenses set up by them were alike applicable to Mrs. Varner and her children for whom she was guardian ad litem. The judge who presided at the trial of that case was evidently of the opinion that the minors were interested in that litigation, for the order appointing a guardian ad litem for them expressly so .states; and this opinion of the judge is further indicated in the instructions he gave to the jury, upon which error was assigned in the motion made for a new trial. This court, upon the review of the trial in that case, affirmed the judgment. They deemed it necessary to discuss rulings on but one point, namely,' prescription. As the claimants in the present action were parties in the former case against the intestate of the plaintiff in error and others, and as the judgment was there rendered against them to the effect that the defendants in that action had a good prescriptive title to the identical land involved in the present suit, the plaintiffs must be held to be concluded by that judgment, it appearing that they were made parties to the former case in good faith and for the protection of what was then considered to be their interest in the suit, and there being nothing tending to show that there was any fraud, collusion, or any improper motive of any character tending to injuriously affect their interests by making them parties in that action. Ross v. Southwestern R. Co., 53 Ga. 514; Watkins v. Lawton, 69 Ga. 671; Freeman v. Prendergast, 94 Ga. 385 (21 S. E. 837); Lowe v. Equitable Mortgage Co., 102 Ga. 103 (29 S. E. 148); Walden v. Walden, 128 Ga. 126 (57 S. E. 323). It follows from what has been said that a verdict was demanded in favor of the administrator, and that the court erred in directing a verdict for the claimants.

Judgment reversed.

Beck, J., absent. 'Plie oilier Justices concur.