50 S.E.2d 347 | Ga. | 1948
1. No injury is shown to the plaintiff by the inclusion, in an order making this court's judgment the judgment of the trial court, of a judgment against the plaintiff for "$ ____" costs, when in fact such costs have been paid.
2. It was error for the trial judge to allow, over objection "that there is no *618 identity of parties nor causes in the two actions," an amendment to the plea and answer, which amendment pleaded as res judicata a judgment entered in a former proceeding to which neither the plaintiff in the instant case nor any one in privity with him was a party, which judgment purported to adjudicate that the plaintiff had no right, title, or interest in the land here involved.
(a) The error in allowing the amendment was not rendered harmless by anything that developed later during the trial. On the contrary, evidence was introduced in support of such amendment, and the judge in effect charged the jury that the plaintiff was bound by the former judgment.
3. Where the plaintiff's title was based on a sheriff's tax deed and 7 years' adverse possession thereunder, the following excerpt from the charge of the court, considered with the charge as a whole, was not error as against the plaintiff for any reason assigned: "You are instructed that, under the law of the State of Georgia as it existed in 1931, J. C. McDonald had no right to take possession of the property until after twelve months from the date of the deed, and if he took possession within that period, his taking of such possession was contrary to law, and every person, including Mr. McDonald at that time, was presumed to know the law. So if you find that he entered and took possession of this property within twelve months from the date of his deed and not in good faith, then he can not claim a prescriptive title under the facts of this case, and if you find that to be true, then you would return a verdict for defendant."
(a) Questions made in the motion for new trial which are not likely to arise on another trial of the case are not adjudicated.
(b) Under the ruling in note 2 above, the court erred in overruling the plaintiff's motion for a new trial.
During the progress of the trial now under review, the defendant, Ernest F. Wimpy, over objection of the plaintiff, filed an amendment to his answer, setting up, as "res adjudicata as to any claim, right, or demand" of the plaintiff to the land involved, the proceedings in Lumpkin Superior Court in the case of C. H. Breyman and A. C. Wheeler v. Standard Gold Mining Company, a Georgia corporation whose charter had expired, for appointment of a receiver to seize its property and wind up its affairs. In this amendment it was alleged: In September, 1932, Charles H. Breyman and A. C. Wheeler filed their petition against Standard Gold Mining Company, a Georgia corporation, and its stockholders, by which the petitioners sought to have a receiver appointed for all of the property of said corporation. Said corporation owned among other lands "the undivided one-half interest" in the land claimed by the plaintiff McDonald, together with other land in Lumpkin County. The petitioner Breyman held a specified number of shares of the corporation. As alleged, the property was not being looked after, timber was being cut, and waste perpetrated, taxes were being allowed to accumulate without being paid by the company and that various amounts had been advanced with which to pay such delinquent taxes. The charter of the corporation had expired, and none of the officers of said corporation resided in this State so far as the petitioners knew or believed, and in order to exercise its jurisdiction it was necessary for the court to seize the res and make such provision for notice as might be proper, and make such disposition of the property as was necessary to "protect the State and County" as to taxes to be collected without break in continuity, "and to see that the State's sovereignty with respect to its property was exercised and protected." Those petitioners prayed for the appointment of a receiver, that he be directed to seize the property and sell the same under order of the court, for direction as to disposition of the proceeds, and for "such other and further relief *620 as" might be appropriate to the rights of any party at interest under the facts as alleged and that might arise on any other contingency, and to enter such order as might be necessary for the protection of any party, and every person, firm or corporation who might have an interest in said property or any part thereof.
As further alleged, a receiver was appointed and directed to seize said property, and give notice to all persons in possession of any part of the property and to post written notices in such places on the property as would conspicuously invite attention to the fact that said property had been seized. The court further directed all persons having or claiming any interest in or to said property to intervene in that proceeding and set up their claim. The receiver appointed by the court seized the land referred to in the petition, posted written notices in conspicuous places thereon notifying all persons that said property had been seized by direction of the court, "and in addition thereto had a copy of the petition, order and process served upon Carl McDonald, the plaintiff in this case, by the sheriff of said county. "Thereafter, on the 20th day of April, 1934, a jury . . among other things found by their verdict that J. C. McDonald, J. A. McDonald, and Carl McDonald had no interest in the property now in controversy, that any deed held by him on a tax sale or otherwise should be canceled, and on said date this . . court entered a decree, by the terms of which it was adjudged and decreed that the plaintiff in this case had no right, title, or interest in the property now in controversy." "This defendant contends . . that the effect of the petition in said proceeding, the order of the court, the seizure of the property, the posting of notices in conspicuous places on the property, and the final verdict or decree entered April 20, 1934, was to adjudicate that the plaintiff, J. C. McDonald, had no right, title, or interest in and to said property, and said verdict and decree entered thereon is now urged by this defendant as res adjudicata as to any claim, right, or demand J. C. McDonald has in and to" the land claimed by him.
The plaintiff objected to the allowance of this amendment on the grounds: that matters in abatement, pendency of another suit, or former recovery should have been set up by special plea at the first term or as soon thereafter as known; that later such matters could not be engrafted by amendment to an answer filed *621 at the first term, which in no specific way indicated that the defendant intended to rely upon estoppel by judgment or res adjudicata; and that there is no identity of parties or causes in the two actions. The objections were overruled.
As to the judgment allowing the amendment over the objections made, it is stated in exceptions pendente lite taken to such ruling that the court erred in not sustaining the objections, because: (1) such amendment came too late; (2) it was not germane; (3) it shows that the former judgment was for less than the fee; and (4) that the plaintiff's alleged prescriptive title was not, and could not have been, an issue in the former litigation, which, as the plaintiff contends, was a nullity for want of a natural or artificial defendant.
The jury returned a verdict in favor of the defendant. The plaintiff made a motion for a new trial, which as amended was overruled. The plaintiff preserved, by exceptions pendente lite, assignments of error on the judgment allowing the amendment to the plea and answer; also assignments of error on the order of the trial court making the judgment of the Supreme Court inMcDonald v. Wimpy,
2. The court erred in allowing the amendment to the plea and answer, over timely objection of the plaintiff "that there is no identity of parties nor causes in the two actions." This, for the reason that the plaintiff, J. C. McDonald, according to the amendment, was neither a party nor in privity with any party to the proceeding pleaded as res judicata against any right or title of the plaintiff to the land here involved. "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 is not contended by counsel for the defendant in error that J. C. McDonald was named as a party in the former proceeding.
"While the judgment of a court of competent jurisdiction is conclusive between parties and privies as to the issue which it decides, it is not so as to third persons." Hart v. Manson,
The allowance of this amendment can not be said to have been harmless to the plaintiff in this case, as was ruled with reference to improper rulings on pleadings in HudginsContracting Co. v. Redmond,
3. The first special ground of the motion for a new trial, numbered 4, assigns error on the following excerpt from the charge of the judge: "You are instructed that under the law of the State of Georgia as it existed in 1931, J. C. McDonald had no right to take possession of the property until after twelve months from the date of his deed, and if he took possession within that period, his taking of such possession was contrary to law, and every person, including Mr. McDonald at that time, was presumed to know the law. So, if you find that he entered and took possession of this property within twelve months from the date of his deed and not in good faith, then he can not claim a prescriptive title under the facts of this case, and if you find that to be true, you would return a verdict for the defendant."
The assignments of error were: (a) The charge was not sound as an abstract principle of law. (b) The period of limitation for the redemption of property sold under tax executions is twelve months from the payment of the purchase-price, irrespective of when the deed is made or dated. (c) Such charge conflicts with the presumption that entry accompanied by color of title is in good faith. (d) Whether or not such charge is abstractly correct, it conflicts with the law of this case, which has become settled by the decision in McDonald v. Wimpy,
When considered with other portions of the charge, the assignments of error in this ground of the motion are without merit.
On the subject of title by prescription under color of title, the judge had already charged the jury: "Now, I charge you that a purchaser of land at a tax sale is not entitled to be placed in possession of the land until after the time for redemption has expired. I charge you that at the time of this alleged conveyance that the defendant in fi. fa. had a period of twelve months from the date of the conveyance in which to redeem the property. I charge you that a purchaser at a tax sale, under a sale for the purpose of collection of taxes, under a tax fi. fa., that the purchaser at such a sale would not be entitled to be placed in possession of that property until after the period of redemption, that is, twelve months, had expired. I charge you that possession before that time would not be in conformity with the law and would not be as a matter of right on the part of the purchaser. Now, I charge you further, gentlemen of the jury, that if you believe under the evidence in said case and under the rules of law the court has given you in charge, that the plaintiff in this case, Mr. McDonald, bought this property at a tax sale, and received from the sheriff of this county a deed therefor, I charge you that tax deed would constitute a sufficient color of title. Also, I charge you that if you should find from the evidence in this case, and under the rules of law the court has given you in charge, that that possession was adverse, notorious, and peaceable, and in conformity with the necessary possession as defined to you here, that he remained in possession for as long as seven years, I charge you that that would ripen into title for Mr. McDonald, the plaintiff, and he would be entitled to prevail in the case. . . Now should you find from the evidence in this case that the plaintiff, Mr. McDonald, although the purchaser at a tax sale, that he went into possession prior to the expiration of the redemption period, that is, twelve months after the sale, then it would be a question for you to determine whether or not that possession *626 originated in fraud, or whether it was in good faith; as to whether or not his entering into possession at that time constituted such possession as its continuance would eventually ripen into an adequate title by prescription under color of title for a period of seven years. . . The plaintiff in this case claims title to the property in controversy under a deed from the sheriff of this county dated April 7, 1931, and in this connection you are instructed that as a conveyance of title, under the facts in this case as disclosed by the evidence, that deed is void, and it did not convey to the plaintiff any title to the property in dispute. You can only consider that deed as color of title, and before the plaintiff would be entitled to [recover in] this case, it must be made to appear that after receiving that deed the plaintiff went into possession of some portion of the property described in it under a bona fide claim of right and that he continued in possession consecutively for a period of seven years or longer. If this was done, the deed would operate as color of title and title could be ripened under it by seven years continuous, unbroken, and uninterrupted possession." Thereafter the charge was given on which error is assigned, to wit: "You are instructed that, under the law of the State of Georgia as it existed in 1931, J. C. McDonald had no right to take possession of the property until after twelve months from the date of his deed, and if he took possession within that period, his taking of possession was contrary to law, and every person, including Mr. McDonald, was presumed to know the law. So if you find that he entered and took possession of this property within twelve months from the date of his deed and not in good faith, then he can not claim a prescriptive title under the facts of this case, and if you find that to be true, then you would return a verdict for the defendant."
This ground of the motion is controlled adversely to the plaintiff's contentions by the rule stated in Brown v.Matthews,
It is not deemed necessary to rule on the remaining three grounds of the amendment to the motion for a new trial. The first of these remaining grounds assigns error on the charge of the court as to the effect of the proceeding pleaded in the amendment, and the second complains of the admission, over objection, of documentary evidence relating to such former proceeding. Under what is ruled in division 2 of this opinion, the questions made by the assignments of error in these two grounds are not likely to arise on another trial. The third remaining ground complains because the trial judge, "in selecting jury panels . . overlooked inquiring as to whether any of the members were related in any way to plaintiff or defendant. He omitted to make such inquiry as to the immediate lessors of the parties."
Because of the court's error in the ruling dealt with in division 2, the judgment overruling the motion for a new trial must be reversed.
Judgment reversed. All the Justices concur. *628
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