113 Ga. 815 | Ga. | 1901
On August 28,1876, a judgment was rendered by the superior court of Taliaferro county in favor of T. M. Bryan, as administrator of the estate of J. B. Hart, against AtealomJL Evans. This judgment and the execution issued ihereon were subsequently assigned to John C. Hart. A constitutional homestead, containing 307 1/2 acres of land in that county, was, in August, 1877, duly set apart to Evans as the head of a family consisting of his wife, Mary E., and several minor children. By a deed dated March 14, 1882, and recorded April 1, 1882, Evans and his wife undertook to convey to R. CUEyans, in fee simple, 200 acres of the land embraced in the homestead. On April 18,1882, he executed and delivered to Ellen E. Huntress a mortgage by which it was intended to create in her favor a lien on the land described in the deed just mentioned. Mrs. Evans died March 12,. 1894, and Absalom G. Evans died March 12, 1897. M. E. Griffith was appointed administrator on his estate. On the first Tuesday in January, 1898, the homestead estate having previously terminated, the administrator sold the entire tract of 307 1/2 acres to G. T. Edwards for $755, and made him a deed thereto on the 15th day of that month. On the same day, Edwards conveyed a portion of the tract to E. I. Anderson, and the balance of it to Jesse' Portwood. Thereafter, C. W. Huntress, as guardian of Ellen E. Huntress, who had obtained a judgment of foreclosure upon the mortgage of R. O. Evans to her, caused an execution issued upon such foreclosure to be levied upon 200 acres of land .as'described in that mortgage. Separate claims were filed by Edward's, Anderson, and Portwood. Upon a trial of Anderson’s claim the superior court, rendered a judgment in his favor. That judgment wasrevetsed by
The deed from Absalom G. Evans and his wife to R. O. Evans and the mortgage executed by him to Ellen E. Huntress were, because of indefiniteness and uncertainty in the descriptive terms therein used with respect to the land to which they referred, and for other stated reasons, absolutely null and void. R. O. Evans never in fact set up title in himself to the 200 acres of land which Absalom G. and Mary E. Evans undertook to convey to him, but on divers occasions made declarations and did acts (all of which were particularly set forth) which in law and in equity estopped him, as against Portwood and Anderson, from claiming title to any portion of the land originally constituting the Evans homestead. The judgment on which the Hart execution was issued was, next to the expenses incident to the burial of Absalom G. Evans and certain expenses of administration, the highest lien upon that land. Of the proceeds of the sale thereof wdxich was made by the administrator, he paid $520 on that execution, leaving a balance still due thereon. The estate of Absalom G. Evans, consisting entirely of the 307 1/2 acres of land, is insolvent. The prayers of the petition in substance were: (1) That R. O. Evans be enjoined from the further prosecution of his actions of ejectment. (2) That Huntress, guardian, be enjoined from “proceeding further with the
A restraining order was granted, and a day in advance of the appearance term was set for the hearing of an application for an interlocutory injunction. That hearing was afterwards postponed, and did not take place till March 13, 1901, which was after the adjournment of the appearance term of the case. At that term Huntress, guardian, and R. 0. Evans each demurred generally and specially. One of the guardian’s special grounds of demurrer was that “there is a misjoinder of causes of action, this defendant havingno interest in the ejectment suits brought by R. 0. Evans;” and one of the grounds of his special demurrer was, that “ there is a misjoinder of causes of action, in that the actions of ejectment brought by this defendant have no connection with the proceeding by Huntress to foreclose his mortgage.” The judge passed an order dissolving the restraining order and denying an injunction, and this is the main error assigned in the bill of exceptions sued out by Portwood and Anderson. If the special grounds of demurrer set forth above were well taken, this, of course, would afford an all-sufficient reason for upholding the judgment under review. That they were well taken we have no doubt.
If this petition did not seek to join several distinct and incongruous causes of action, it would be difficult to conceive of one having such a defect. R. 0. Evans was endeavoring, by separate actions at law against two persons, to recover two parcels of land. In these controversies, Huntress, guardian, had not the slightest concern. It was, under the facts alleged, entirely immaterial to him whether R. 0. Evans did or did not prevail over Portwood and An
While the order of the judge denying the injunction was not expressly based upon the question of law dealt with in the foregoing-discussion, the fact that the plaintiffs’ petition was not, as against-the special demurrers above mentioned, maintainable, leads inevitably to the conclusion that the action taken by the judge should not be disturbed by this court. See, in this connection, Ripley v. Eady, 106 Ga. 423, and Coker v. Montgomery, 110 Ga. 22.
Judgment affirmed.