51 Ga. App. 74 | Ga. Ct. App. | 1935
The Hamilton National Bank of Chattanooga, Term., as administrator with will annexed of the estate of Mrs. Ada Grace Murphy, filed suit in the superior court of Miller county against Mrs. Trudie Kimbrel Chapman individually and as administratrix of the estate of A. B. Chapman deceased, alleging: that Mrs. Trudie Chapman and A. B. Chapman did on December 1, 1922, execute and deliver to the Chickamauga Trust Company a certain promissory note in the sum of $3000, payable December 1, 1927, and bearing interest at the rate of 6%, payable annually; that said note was secured by a loan deed to described lands; that within a short time after the execution of the note and the deed Mrs. Ada Grace Murphy purchased them from Chickamauga Trust Company for a valuable consideration, and they were delivered to her, and all subsequent payments of interest and principal thereon were made to her by the defendants named therein; that after said principal note became due in 1927, defendants executed and delivered to Mrs. Ada Grace Murphy a certain extension agreement providing that said defendants should pay the interest due each year to Mrs. Murphy and $100 of the principal and the loan to be extended until 1932. Attached to this extension agreement were five interest notes, payable December 1st each succeeding year, to Mrs. Ada Grace Murphy. The extension agreement itself, however, was not signed by Mrs. Murphy, but was signed by the Chickamauga Trust Company and the defendants, and it contained, among other things, the following stipulations: “Whereas the Chickamauga Trust Company has sold, assigned, and delivered said note and deed to Ada Grace Murphy, who now owns and holds the same, and whereas the said A. B. Chapman and wife, Trudie Kimbrel Chapman, now hold title to said premises, subject to said loan deed, and whereas said note was due on the 1st day of De
At the appearance term the defendants filed their answers and demurrer, together with a plea in abatement as follows: “Mrs. Trudie Chapman, as administratrix aforesaid, says she was appointed and qualified as administratrix of the estate of A. B. Chapman on March 5, 1934 (just one month before the filing of the suit), and that as such administratrix she is entitled to 12 months exemption from suit, and the present suit should be abated, and that such exemption has not been waived.” A motion to strike this plea was made by the plaintiff after the filing and allowance of the following amendment: The plaintiff “waives any right it may have to recover in this proceeding a judgment in personam against Trudie Kimbrel Chapman individually or as administratrix of the estate of A. B. Chapman, deceased, on the note and security deed described in the original petition, and also waives any
The defendants interposed a demurrer complaining that the amendment, if allowed, would make the suit multifarious, for the reason that it would embody an action on three separate and distinct instruments all in one count ; because it undertook to set out three separate and distinct causes of action in one count, to wit: a suit on a note, a suit on extension agreement, and a suit on a security deed, and the same was a misjoinder of causes of action;, because it attempted to engraft an equitable cause of action onto a common-law cause of action without setting out any grounds therefor and without setting out any equitable ground for relief sought; and because it undertook to circumvent the demurrers and plea with reference to the exemption by an administrator from suit for a period of 12 months. All of the grounds of the demurrer were but amplifications of these grounds. The demurrer was overruled and the defendants excepted.
The defendant in error, after the allowance of the amendment to its original petition, made a motion to strike the plea in abatement, on the ground that the plea was insufficient in law and that the facts set out therein showed no reason why the suit as amended should be abated. The court overruled this motion to strike, and defendant excepted in a cross-bill of exceptions.
There can be no question that the demurrer or plea in abatement to the suit as originally brought, if substantiated by the facts, would be valid. Does the fact that the amendment waives any right to a personal judgment against the defendant relieve it from
Since the plaintiff in the present case does not attempt to assert his claim for a debt against the estate of the deceased, but limits his claim to its assertion against the property by which it is secured and whose legal title to which is already in the plaintiff, we do not think that the defendant may complain as to such a course. The plaintiff asks less, and not more; he asks for the same thing prayed for in the original action, a special lien against the land; he waives the right to a general verdict creating or asserting a debt against the estate. “The rule generally adopted by courts, in construing statutes which give such an exemption from suit, is that where the suit does not seek to fix or establish a liability against the estate, it does not come within the statute.” Lester v. Stephens, 113 Ga. 495. The action as originally brought was a suit on a note. The note was payable on its face to a person other than the plaintiff or its testate. The petition contains allegations setting up facts which, if they are sustained by the proof, will show that the legal as well as the equitable title to the note and deed are in the plaintiff. The fact that no order from the bankrupt court is attached to the conveyance by the trustee to the plaintiff may be a valid objection when such instrument is tendered in evidence, but the allegation is good as against demurrer.
The suit as amended was still a suit on the note, but with a waiver on the part of the plaintiff to any rights thereunder .except as such rights might be protected by the security deed to the land whose consideration was evidenced by the note. Such a procedure as in the present case may be novel, but when considered it is found not to introduce any new parties or cause of action. The plaintiff asks less and not more by his amendment. He asks in the
Judgment affirmed on the main bill of exceptions; and reversed on the cross-bill.