131 Ga. 807 | Ga. | 1909
Mrs. Morehead, as successor in title under Lathrop & Company, claimed, as against the children of W. D. Allen and his wife, to have a perfect title by virtue of the deed made by Mrs. Allen under authority of the order of the judge of the superior court, purporting to convey both her life interest and the remainder interest of her children to Lathrop & Company, covering the 700 acres of land. She further contended, that if this deed did not convey perfect title to the remainder interest of the children, Lathrop & Company held a deed made by the United States marshal under a public sale based upon an execution against Allen; that the original deed made by Allen to his wife, with remainder to their children, born and to be born, was made for the purpose of hindering, delaying, and defrauding his creditors, including one Cooper, whose administrator afterwards recovered a judgment against Allen under which the marshal’s sale took place; and that the deed made by Allen was without consideration, and was never delivered, and therefore that the plaintiff had a title under the marshal’s deed, superior to any claim of the children under the deed of their father.
Turning to the first point above stated, in regard to the proceedings before the judge of the superior court and the deed made under it, let us see if those proceedings are to be considered as
In subsection 4 of the latter section it is declared that the' judges have power to hear and determine “questions arising upon writs of habeas corpus or bail, when properly brought before them; all motions to grant, revive, or dissolve injunctions, to give new security or lessen the amount of bail; and to perform any and all other acts required of them at chambers.”
In the case before us the judge declared on the face of his order that he was acting at chambers, and consequently not as a court in session; and we have endeavored to show that the whole proceeding bore other indicia that this was the case. It is urged that the proceedings were recorded on the minutes of Houston superior court of the day when the judge’s order bore date; but if it were a matter in which the judge had- the authority to act at chambers or even in vacation, he would nevertheless have directed due entry to be made upon the minutes of the court of the proper county. The fact that the entire proceedings were ordered to be entered on the minutes and were so entered would tend to indicate that they were considered as matters dealt with at chambers and specially to be placed upon the minutes by order, instead of a regular case in equity before the court, in which the orders and judgments and decrees are recorded without any special direction from the judge, and the pleadings are not commonly entered.on the minutes.
If the action taken was that of the judge at chambers and not that of the superior court, then, as several times held by this court, the judge bad no authority to order a sale of the legal title
The order under consideration was granted in 1873, and the act of 1889 (Civil Code, §2545) is in no way involved.
In the ease of McGowan v. Lufburrow, 82 Ga. 523 (9 S. E. 427, 14 Am. St. R. 178), parol evidence was admitted without objection, and the Supreme Court dealt with the evidence before it, not with the question of its admissibility. Furthermore, the Justice who prepared the opinion said that “It is true that on the back it is marked ‘in chambers;’ but these words were left out by the clerk when he recorded the decree on the minutes of the court.” As a matter of fact the original record of file in the office of the clerk of this court shows that the words “in chambers” occurred in the heading of the order, and not merely on the back of the papef, and that they were not recorded on the minutes by the clerk; but the quotation from the opinion above made shows that it was inadvertently treated as if those words were only a part of the entries on the back of the record, which were not included by the clerk in recording the order.
It was contended that under the decision in this ease when formerly before this court (127 Ga. 510 (56 S. E. 745)), the evidence should have been admitted; but we do not think that the decision then rendered is subject to such construction. We then called attention to several of the circumstances mentioned in this opinion as tending to show that the judge treated the matter before him as a chambers proceeding, distinguished the case from that of McGowan v. Lufburrow, supra, stated that no presumption would arise in favor of the order which would overcome the statement of the judge that it was granted at chambers, and remanded the case to the superior court for a new trial, which was rendered
Judgment affirmed.