Myers v. Warrenfells

153 Ga. 648 | Ga. | 1922

Hines, J.

(After stating the foregoing facts.)

1. It is unnecessary to deal with any of the headnotes except the last.

2. Hnder the facts, did the court err in directing a verdict for the claimant ? J. W. Cavender sold to B. F. Ellsberry the premises in dispute, giving to the purchaser his bond for title, and taking the notes of the purchaser Tor the purchase-money. The bond for title was conditioned to make to the purchaser the title to the land therein embraced, on payment of these notes given for the purchase-money. The purchaser died. The administrator obtained from the court of ordinary an order authorizing him to sell this land as the property of the purchaser. Thereupon the seller filed his claim to this land. On the trial of the claim the administrator of the purchaser introduced evidence showing various payments on the purchase-money; and he contends that his proof shows the payment of the purchase-money in full, calculating the interest on the purchase-money notes at seven per cent., instead of ten per cent, as called for by these notes. On the other hand, the administratrix of the claimant contends that the purchase-money has not been paid in full by the purchaser, although the evidence introduced in behalf of the claimant shows payments on the purchase-money by the vendee. Hnder the view which we take of this case, it is unnecessary to determine whether the purchase-money has been paid, and, if not paid in full, what balance is due on the purchase-money.

We think that justice demands that a new trial should be granted. A claim case partakes of the nature of an equitable proceeding. Williams v. Martin, 7 Ga. 377, 380; Colquitt v. Thomas, 8 Ga. 258, 264; Ford v. Holloway, 112 Ga. 851, 852 (38 S. E. 373); Hollinshead v. Woodard, 138 Ga. 7, 13 (57 S. E. 79); Douglas v. Jenkins, 146 Ga. 341, 343 (91 S. E. 49). When a sale under an execution, or by an administrator under an order of the court of ordinary, is stopped by a claim, the proceeding is converted into a quasi-equitable proceeding, and either the plaintiff in execution, or the administrator, or the claimant can, by way of amendment to the issue thus joined, introduce, in aid of their respective demands, any equitable rights germane to the issue, which is whether or not the property is subject to be sold under the execution or by the administrator under the order of the court of ordinary. Cox v. Cox, 48 Ga. 619, 634; Hardman v. Cooper, 107 Ga. 251 (33 S. E. 73); Ford v. Holloway, supra. It is beyond doubt that under the claim laws equitable rights of the parties can be reached and the pleadings so framed as to give effect to those rights. Sterling v. Arnold, 54 Ga. 690 (5); Shewmake v. Johnson, 57 Ga. 75; Hughes v. Clark, 67 Ga. 19, 22; Green v. Mann, 76 Ga. 246; Ford v. Holloway, supra.

On the trial of this case evidence was introduced, without objection that there were no pleadings to authorize its introduction, tending to establish the rights of the purchaser, and those of the seller. In this state of the pleadings and under the evidence introduced the court should not have directed a verdict for the claimant. The amount due upon the purchase-money should have been ascertained. If there was a balance due upon the purchase-money, it should have been fixed by the verdict; and the verdict and decree should have been so molded as to have the property sold, the balance due oh the purchase-money first paid, and the balance of the purchase-money, if any, turned over to the administrator. If it had been found that there was nothing due on the purchase-money, then a verdict should have been rendered in favor of the administrator of the purchaser and against the claim filed by the claimant.

On the next trial the pleadings should be so framed and the allegations on all material points should be so distinctly made that the jury may be able to pass upon the respective rights of the parties; and the verdict and decree so molded as to fully protect and enforce these rights. Sterling v. Arnold, supra.

Judgment reversed, with direction.

All the Justices concur.