170 Ga. 615 | Ga. | 1930
T. R. Bennett, as superintendent of banks for the State of Georgia, brought an equitable petition for the use of Plains Bank, against J. R. Logan, Carrie J. Logan, Logan & Andrews Inc., fm. M. Kinard, Atlanta Trust Company, Metropolitan Life Insurance Company, and Union Central Life Insurance Companjr, alleging that the Plains Bank went into the hands of T. R. Bennett, superintendent of banks, for liquidation, on July 16, 1926. A. B. Mobley as superintendent of banks succeeded T. R. Bennett as such superintendent of banks, and the case is now pending in his name. The prayers of the petition are for injunction against the defendants, to jirevent them from changing the present status of the conveyances set out in the petition; that no further liens or conveyances be made until further order of the court; that the deed executed by J. R. Logan to Mrs. C. J. Logan be declared fraudulent and be canceled as to plaintiff’s rights in the premises; that the property described in the deed from J. R. Logan to Mrs. C. J. Logan, and the property described in the bond for title from George M. Forman to J. R. Logan, the bond for title and land described therein having been transferred to the Plains Bank, be declared subject to the judgments and executions secured by the Plains Bank in the city court of Americus; that said judgments and executions be adjudged prior liens on said property in favor of plaintiff; that' a commissioner be appointed to sell said property, and the proceeds arising from the sale be applied, first, to the payment of the judgments and executions of the Plains Bank, and the balance, if any, be awarded to the proper parties; and for general relief. Plaintiff seeks to establish, under the allegations of his petition, a lien in favor of the Plains Bank against the respective defendants named above, by virtue of a bond for title issued by George M.
The court decreed that one half of the auditor’s fees be paid by the plaintiff and one half by the plaintiffs in error, who were three of the defendants in the court below, and that the plaintiffs in érror be assessed with the costs of court. The plaintiffs in error except to that portion of the decree assessing the costs of court against them. There is no merit in this exception. In an equitable proceeding it is within the discretion of the trial judge to award the costs of court as the facts may warrant; and unless his discretion is abused in so doing, his judgment will not be disturbed. Civil Code (1910), § 5423. See also § 5148. In the
This case was submitted to an auditor, who in due time tiled his report with his conclusions on questions of fact and of law involved in the case. The plaintiffs in error, J. E. Logan, Mrs. Carrie J. Logan, and Logan and Andrews Inc., filed exceptions to the findings of fact and of law. The court overruled each exception of law and fact, and the plaintiffs in error excepted. The principal exceptions are those which relate to the status of the plaintiffs in error relatively to the Plains Bank under the bond for title which Eorman gave to J. E. Logan, and which was transferred by Logan to the Plains Bank; and a transfer by Logan to Mrs. Carrie J. Logan, and by her to Logan & Andrews Inc., of a timber-lease on certain land described in the bond for title. The auditor-held that the interest of these defendants was subject to the lien of the Plains Bank against J. E. Logan, created by the bond for title transferred by him. To an understanding of the question involved in the exceptions it is essential to set but what the auditor .found as to questions of fact, relating to the interest of the respective parties; and also, as a basis for his conclusions of law, to recite the history of this transaction as appears in the auditor’s report. In paragraph 2 of his report, under the heading “Atlanta Trust Company,” the auditor found that J. E. Logan executed to George M. Forman, of Chicago, a deed to the lands in controversy, to secure a loan of $8,000. On April 13,1919, J. E. Logan, one of the directors of the Plains Bank, and at that time indebted to that bank, transferred the bond for title in question, which transfer was recorded February 4, 1920. The' auditor also found a course of dealing between J. E. Logan and the Atlanta Trust Company in securing the loan of $13,000, and that he was aided in this respect by the president and cashier of the Plains Bank, and that the purpose of seeking this loan was to discharge that made in 1912 by Logan to Forman, amounting to $6,000, the balance of $5,000 to be paid over to the Plains Bank by Logan on his indebtedness
The auditor further found, with reference to the knowledge of the Union Central Life Insurance Company, Atlanta Trust Company, Metropolitan Life Insurance Company, and W. M. Kinard, that these parties had no actual knowledge of this bond for title from Forman to Logan. He further found that J. R. Logan, out of the proceeds of the loan from the Atlanta Trust Company, offered Forman a settlement; whereupon Forman declined to accept it until his bond for title was surrendered; that the Atlanta Trust Company, through its attornejr at law at Amerieus, called upon J. R. Logan for said bond for title, that Logan made search for it, failed to find it, and requested the cashier of the Plains Bank to make search for it, and the cashier reported to Logan that he was unable to find it; that Logan then executed an affidavit prepared in the office of the attorney at law for the Atlanta Trust Company at Amerieus, wherein he deposed that he was unable to find the bond for title, and that it was lost and had never been transferred by him to any one; that when this affidavit was furnished to For-man he accepted payment of the loan which was due to him by Logan, and canceled his security by reconveying to Logan by quitclaim deed the land described in the bond for title. The auditor also found that the indebtedness of Logan at the time of the transfer of the bond for title to Plains Bank, and all of the notes as constituting the original indebtedness, had been satisfied except two notes that were renewals of two notes originally given by J. R. and J. C. Logan, upon which last renewal plaintiff has secured a judgment in the city court of Amerieus. Plaintiffs in error contend,
The auditor found the following as conclusions of law:
“79. With reference to the four above-stated defendants, I find that the plaintiff, the Plains Bank, acting through its cashier, W. L. Thomas, in view of the findings of fact heretofore made by the auditor, is not entitled, either in law or equity, to the grant of any relief which would in any wise abridge or militate against any of said lenders in the enforcement of their security, and the indebtedness covered thereby; nor that would, so far as the said plaintiff is concerned, interfere with W. M. Kinard in the free use, occupation, and control of the 70 acres of land purchased by him from J. R. Logan; nor to any relief that would depreciate the value of the securities and lands so held by said defendants. The auditor rules that the relations of said Plains Bank to the Atlanta Trust. Company loan (the Metropolitan Life Insurance Company standing in the shoes of Atlanta Trust Co.), and the sale of the land to W. M. Kinard, are such as to raise an estoppel in pais as against said Plains Bank to undertake to enforce its rights under the
“80. The auditor rules that the Forman bond for title under the transfer thereof by Logan into the Plains Bank — both the bond and transfer being duly recorded — conveys to the Plains Bank, for the purpose of securing indebtedness of Logan existing at the time of said transfer, title to the lands described in said bond for title; and that said Plains Bank is invested with the right to enforce its claim, under said bond for title, upon the lands described therein, and for indebtedness secured thereby, as against J. R. Logan, and as against his wife, Mrs. Carrie J. Logan, notwithstanding the deed from her husband to her, of date Sept. 2, 1924; and also as against Logan & Andrews Incorporated, notwithstanding its— Logan & Andrews Inc. — claim to the timber covered by the conveyance of Mrs. Carrie J. Logan to said Logan & Andrews Inc.
“81. I rule, that, as against said J. R. Logan, Mrs. Carrie J. Logan, and Logan & Andrews Inc., the Plains Bank, by virtue of said Forman transferred bond for title, is invested with title to the lands embraced in that bond for title, as security for the sums of money, plus future interest thereon, embodied in a judgment rendered in the city court of Amerieus on Sept. 21, 1925, in the case of Plains Bank vs. J. R. Logan and J. C. Logan, for principal $1635.81, interest to date of judgment $116.21, future interest at the rate of 8 per cent, per annum, together with $175.21 attorney’s fees, as well as the costs of that proceeding; and that this title arising under said transferred Forman bond for title is paramount to the conveyance made by J. R. Logan to his said wife, and to the conveyance made by Mrs. Carrie J. Logan to Logan & Andrews Inc., to the lands embodied in said Forman bond for title.
“82. I rule that the plaintiff is entitled to no relief as against Mrs. Carrie J. Logan or Logan & Andrews Inc., except such as is indicated above; and that said plaintiff is not entitled to have the deed of conveyance from J. R. Logan to his wife, Mrs. Carrie J. Logan, dated Sept. 2, 1924, surrendered and canceled. The auditor rules, that, except as affected by said transferred bond for title, the deed of conveyance from J. R. Logan to his wife, as referred to above, is valid and binding, and should be so decreed.”
The auditor and the court below held that there was no novation
We reach the same conclusion as did the auditor and trial court, that the transfer of the bond for title from Forman to J. R. Logan, and from J. R. Logan to the Plains Bank, both of which were duly
Judgment affirmed.