107 Ga. 456 | Ga. | 1899
An equitable petition was filed in the superior court of Chatham county by Pauline A. Durant against the Duchesse d’Auxy, the Countess d’Auxy and others. Its allegations were, in substance, as follows: On the 2d day of July, 1866, Gazaway B. Lamar executed a deed conveying to G. D. Lamar, in trust for himself and his three sisters, daughters of the grantor, certain realty in the city of Savannah. These sisters were Charlotte A. Soutter, then the wife of Robert •Soutter Jr., Annie C. Lamar, and Harriet C. Lamar. The deed declared that the trustee therein named was to have and to hold the shares of these three in the property free from the debts of their husbands, and for the sole use, benefit, and advantage of themselves “and their child or children.” At the date of the execution of this deed Mrs. Soutter had one living child, a son named James F. Soutter. On May 31, 1869, the superior court of Chatham county, upon a bill filed by the trustee and his sisters, granted a decree directing that the property above referred to be sold for $50,000 and the- proceeds reinvested on the same uses and trusts as set forth in the deed of Gazaway B. Lamar. A sale was subsequently made, and with the proceeds thereof the trustees, on June 20, 1870, purchased from the National Bank of the Republic, of New York, certain realty in Savannah known as “Lamar’s wharf.” In the deed from the bank to the trustee it was recited that he was to have and to hold “one equal undivided fourth part [of the property conveyed] in trust for the sole and separate use of his sister Mrs. Charlotte Soutter, wife of Robert Soutter .Junior, for and during the term of her natural life, free from the debts, contracts, and control of her present or any future husband, and from and
At the March term, 1889, of the Supreme Court of Georgia,, that tribunal, in construing the deed executed by Gazaway B_ Lamar in 1866, held that “inasmuch as the said Charlotte A. had one child, to wit James F. Soutter, living at the date of said deed, the said Charlotte A. took an estate in common with, said child, and the daughters [of the grantor therein named]; who had no child or children took an estate severally to themselves in fee simple.” By reason of this decision, petitioner’s “supposed security for the debt of the said Charlotte A. was cut down just oiie-half, [and] after said decision the said Charlotte A. was paid and received only one-eighth part of the-net rents and profits of said Lamar wharf property, and her son, the said James F. Soutter, the other eighth.” The said Charlotte A. having made default in paying, after its maturity,, the debt secured by the mortgage, petitioner was compelled to-take legal measures to collect the same, and on December 26,. 1891, she brought a suit for this purpose, and on June 30,. 1892, a decree was rendered in her favor against the said Charlotte A. for $6,347.56, besides interest; but “in accordance-with said decision of the Supreme Court of Georgia, the foreclosure of said mortgage -was limited to, and the equity of redemption of the said Charlotte A. barred only as to, a specific-one undivided eighth part in said property, then supposed, by
James F. Soutter, the only child of the said Charlotte A. living at the time of the making of the original trust deed by Gazaway B. Lamar, asserted his equal- undivided one-eighth interest in the substituted property, and collected and received his one-eighth part of the rents and profits arising therefrom up to and including the quarter ending January 1, 1894; so that petitioner had every reason to believe, and did believe, that he claimed and would continue to claim in accordance' with the decision of the Supreme Court an undivided one-eighth interest in the substituted trust property, leaving his mother only one-eighth therein subject to petitioner’s mortgage ; and laboring under the mistake so caused, petitioner levied on and sold one-eighth only. Yet, notwithstanding the receipt by James F. Soutter of his portion of the rents and profits of the wharf property, as alleged, he brought an action of ejectment returnable to the March term, 1892, of Chatham superior court, against Eugene Kelly, the purchaser of the
By the foreclosure proceeding filed by petitioner she “ undertook to reform the said deed made by the National Bank of the Republic, of New York, so as to express the trusts declared in the original deed of Gazaway B. Lamar, and . . a judgment and decree to said effect was taken which was binding upon the said Charlotte A., Duchesse d’Auxy, she having been duly served; but petitioner shows that said Charlotte A. then had, and still has, two living children, the said James F. Soutter, a son by her former marriage, and a female minor child by her present marriage, neither of whom, as petitioner is advised, was made a party to said proceeding or served.” The name of this daughter is Ganie Lucille Belynde, Countess d’Auxy. Until the court shall interpret the trust expressed in
The prayers of the petition were: (1) that by a judgment of the court the interest the said Charlotte A. now has in the substituted trust property be fixed and ascertained, “and that the judgment obtained by petitioner, as aforesaid, on the foreclosure of her mortgage may be levied upon such interest, or that a new and supplemental decree may be granted, if necessary, and so levied, and that petitioner may collect the entire balance of principal, interest and costs still due her on her said bond and mortgage”; (2) “that the court will ascertain and determine what interest, if any, the said James F. Soutter now has in said substituted property, either as- present tenant in common or in remainder, and in the accrued and accruing rents and profits of the said undivided one-eighth thereof”; (3) “that the reformation of the said deed of the National Bank of the Republic, of New York, may be confirmed and made binding upon the said James F. Soutter and the infant daughter of the said Charlotte A., . . and upon all the parties interested”; and (4) for general relief. The petition named as parties defendant the Duchesse d’Auxy and her two children; Harriet C. Jones (formerly Harriet C. Lamar) and her three minor children; and also the children of Annie C. Minor
To the petition as thus amended the Duchess and the Countess filed demurrers raising the questions dealt with in the discussion which follows. The court thereupon entered a judgment dismissing the petition as to these parties defendant,, and to this judgment the petitioner excepted.
From the foregoing it will be seen that the plaintiff’s petition is one in the nature of a bill of review. Relatively to the Duchess, its purpose apparently is to so enlarge the scope of the decree obtained by the plaintiff in her former proceeding against the Duchess and the New York bank as to extend the foreclosure of the mortgage over an additional interest alleged to have been acquired by the Duchess in the Lamar wharf property. As to the Countess, the object of the present petition is to make binding upon her the former decree, in so far as it relates to the reformation of the deed made by the bank to G. D. Lamar, trustee. As the other defendants did not, so far as we are informed, demur to the petition, and, for aught that appears, it is still,' for all proper purposes, pending as to them, we are necessarily limited to a determination of the questions embraced in the inquiry: Is the plaintiff’s petition maintainable for the purpose of obtaining any of the relief for which she prayed against the Duchess and the Countess? Our conclusion is that it is not, and, accordingly, that the judgment excepted to was right. This, we think, will appear from an examination and consideration of the plaintiff’s prayers in connection with the facts alleged. Before undertaking to deal with these specifically, we will first dispose of a preliminary matter as to which there seems to be no dispute, but a statement of which naturally leads up to a discussion of the points in controversy.
What is said, above disposes of the second as well as the first prayer of the petition; for it follows as a necessary conclusion that it can be a matter of no concern to Mrs. Durant what may have resulted from James F. Soutter’s alleged abandonment of all interest in the Lamar wharf property, either as respects the question of title or income. Her allegations point strongly to the inference that he ratified the sale by G. D. Lamar, trustee, of the property originally conveyed to him by Gazaway B. Lamar, and the investment of the proceeds in the Lamar wharf property. If what James F. Soutter did amounted to a ratification of the trustee’s action, then it would seem that Soutter still has title to an eighth of the substituted property, notwithstanding his recovery from Kelly, based upon the theory that he (Soutter) still owned an interest in the original trust property. But whether he has or has not an interest in the Lamar wharf property, or in the rents thereof already accrued or to accrue hereafter, we are not now called upon to decide. Nor, if
It is obvious that in so far as the present petition relates to the relief sought against the Countess d’Auxy, it is not predicated upon error apparent upon the face of the record of the former proceeding for reformation and foreclosure. That proceeding was good so far as it went, and the parties before the court were bound by all the adjudications therein made. It also seems perfectly clear that the petition nowin hand is not founded upon any new fact. It distinctly alleges that the Countess was in existence when the judgment obtained by Mrs. Durant against the Duchess and the New York bank was rendered. If Mrs. Durant did not then actually know there was such a person in life as this daughter of the Duchess, she could easily have learned the truth in this regard, and certainly all the facts upon which the Countess might, rightfully or otherwise, set up a claim to an interest in the Lamar wharf property were exactly the same in 1892 when the deed was reformed and the mortgage foreclosed, as in 1896 when the present petition was filed. Mrs. Durant either knew these facts or could without difficulty have ascertained them. Indeed, she does not allege ignorance of' the existence of the Countess or of any fact .essential to obtaining against the latter the-relief now sought, of which advantage might not have been taken in the first instance. So far as it relates to the Countess, the petition now before us is simply an attempt to enlarge the scope of the former judgment by making it operate upon and bind her, without alleging any reason or excuse for failing to have her before the court when that judgment was obtained. Ought a court of equity to entertain a petition having such an object? Should a person with all the facts entitling him to equitable relief at his command and all the parties against whom he should seek that relief within his reach, after deliberately selecting such facts and such parties only as he deemed appropriate and after getting exactly such a judgment as he desired, be permitted to again bring the same matter before
Our ruling upon the point now under discussion is supported by the principle laid down in Smith v. Hornsby, 70 Ga. 552, and Murphy v. Savannah, 73 Ga. 263. The case of Gunn v. Gunn, 95 Ga. 439, affords an illustration of a well-brought equitable petition the purpose of which was, not to obtain any new or independent relief or affect new parties, but to make certain, as between the parties thereto, an existing judgment by rendering it operative upon property of which it undertook to dispose but which it did not sufficiently describe. As an instance on the other line, see the later case of Gunn v. Byrom, 107 Ga. 147, in which there was an attempt to reopen a judgment previously rendered in an equitable case, so as to enable the plaintiff to charge the defendant with items of indebtedness which ought to have been included in that judgment, and in which it was held that this could not be done without showing that the plaintiff had no knowledge of the existence of such items before the judgment was rendered and could not have obtained such knowledge by the exercise of ordinary dili
Judgment affirmed.