175 Ga. 613 | Ga. | 1932
This case has heretofore been considered by this court. Mitchell v. West End Park Co., 171 Ga. 878 (156 S. E. 888). Many of the facts are there so fully set forth as to make a repetition of them unnecessary. On the former trial the judge directed a verdict establishing a first lien in favor of the West End Park Company under its loan deeds, upon the proceeds of the sale of the two lots which were in the hands of a receiver. “To this direction and judgment Mrs. Mitchell excepted, for the reason that her loan deeds constituted a first lien upon said funds, and that her loan deeds were entitled to priority over those of said company. Creel made a motion for direction of a verdict in his favor, establishing the amount of his claim as a first lien on the proceeds in the hands of the receiver; and to the refusal of the court to direct such verdict Mrs. Mitchell excepted upon the ground that the lien of Creel was superior in dignity to the loan deeds of said company, and that she had been subrogated to Creel’s lien under the agreement between him and her above set out.” We held that “Where the owner of lots in a subdivision conveyed two of them by deed to a purchaser, and simultaneously took from the latter a deed to each lot to secure a balance of the purchase-money, the title of the vendor to the lots embraced in these security deeds would generally be superior to any liens existing against the buyer at the time, or subsequently obtained against him.” We held, however, that an exception to the general rule existed in this case, and where the security deeds contained an agreement between the owner and the purchaser whereby the latter was to erect a residence on each lot within six months from date, and the owner agreed to subordinate the outstanding notes for the purchase-money to a lien to secure a first loan upon the residence and lot, not to exceed 60 per cent, of the appraised value (provided, that if the residence was not completed prior to six months time from the date of the agreement^ then the
On the day this case was tried the second time, Mrs. Mitchell tendered and filed, over objections, an amendment to her intervention, alleging that her loan deeds had been transferred to the Credit
After the introduction by the plaintiff of the statement referred to above, the defendant introduced Ira Everett, who testified: “I am in the real-estate business. On the 9th day of January, 1929, I was connected with E. T. & George J. Morris, as á salesman of real estate. I had listed with me at that time some property of the' West End Park Land Company. I negotiated a sale of two of those lots to one Elvy Black. I did not take him into the office 'of the West End Park Company. I just carried them a written'proposition. So far as I know, they did not at that time meet Mr. Black. When I submitted that written proposition to them, it was accepted by the president of that company in writing. Black did not come to their office and get the sales contract. I carried Black’s
William J. Davis, for the defendant, testified: “I am president of. the West End Park Company, and was in January 1929.” Q. “When Mr. Everett brought in his proposition for the sale of these lots, what happened then?” A. “They were brought to me by Mr. Campbell, the secretary of the company; and so I read them and authorized the details under which the West End Park Company sells lots. There was no other conversation had between me and Mr. Campbell with reference to these contracts of sale of these lots. I did not have any conversation with reference to these lots with Mrs. W. J. Mitchell at any time before the loan Avas finally closed up and the purchase-money paid. . . I did not have any conversation in connection with the loan deeds which we took on these lots, with her attorney, Mr. E. G. Jackson, nor with anybody, other than the conversation that I have referred to with Mr. Campbell. If any conversation was had between Mr. Jackson, Mrs. Mitchell, or Mr. Mitchell with George Campbell about these lots, it was not reported to me. I did not authorize or instruct Mr. Campbell or any one else to in any way change or alter the terms of the loan deed which was prepared for Black’s signature, or to make any agreement vfith Mrs. Mitchell or her husband or her attorney, Mr. Jackson, by which the first lien of the West End Park Company would be waived or in any way subject to her loan. The directors of the company never took 'any action whatsoever authorizing the secretary to waive the rights acquired under the loan deed of Black to the West End Park Land Co. I did not know, at the time this trade was finally consummated and the purchase-nioney paid to the West End Park Land Co., that Black borrowed money from Mrs. Mitchell. . . I transacted the actual business of the corporation — the actual work. Most of the actual details, the closing of transactions and the carrying out of trades, the Title Company generally does, or the officers of the Title Company. Some of my officers are officers of the Title Company. Mr. Campbell signs a great many of the sales contracts for West End Park Co., but they always have to have my authority first. They get my authority, and I authorize the sale; he signs up the papers sometimes; sometimes he does not. I sign them the majority of the time. And sometimes he signs deeds as well as sales
Q. “Has anybody down there got authority from the West End Park Co. to receive money and put your indorsement on checks?” A. “Oh, yes, the bookkeeper has for the Title Company. He attends to my business for me and deposits it. He receives the money for me.” Q. “After checks were received by some official of the West End Park Co. from the sale of their lots, what would happen to them — could they be deposited to your account?” A. “They would be deposited to my personal account.” Q. “These checks dated January 16, 1939, in the sum of $350, signed by Mrs. Ella Mitchell and made payable to Elvy Black, indorsed 'Pay to the order West End Park Co./ and indorsed by William J. Davis: did you ever see those checks?” A. “No, I never saw those checks. Those checks were perhaps given to the bookkeeper of the Title Company, and the bookkeeper ran them through my account. That indorsement was authorized; it is a stamp indorsement; but he would pay no attention to whose check it was. He might have borrowed the money from somebody else on another piece of property. They were accepted by the West End Park Co. as cash payment on those two lots, I suppose. I have never seen them before, and could not tell you. I am the owner of the West End Park Co., and owned all the stock in it, and so in that way it would naturally come through my account. I do not know who placed on the back of those checks, at the top, 'Pay to the order of the West End Park Co.’”
Mrs. Ella Mitchell testified: “At the time I took two loan deeds from Elvy Black in January, 1939, I did not talk to Mr. W. J. Davis, the president of the West End Park Land Co., nor tell him I was going to make those loans. I did not talk to any officer of the West End Park Land Co. at that time. In this transaction with Mr. Black, Mr. E. G. Jackson represented me. . . Now, these loans that I made of $3500 on each lot, that money was paid out by me in payment of claims for labor and material in building the
E. G. Jackson testified: “As I recall it, Mr. Everett first came to me and brought me the sales contract between the West End Park Co. and Black for the purchase of two lots, and stated to me that Mr; Black had made application to Mrs. Ella Mitchell for a pay-roll loan, and that Mrs. Mitchell would get in touch' with me. Well, I immediately called Mrs. Mitchell; as I recall it, I talked to Mr. Mitchell about it; and he told me to go ahead and examine the title. When I saw it was West End Park, I went down to the Title Company and saw Mr. Campbell about it; told Mr. Campbell what I had in mind, that I was checking the title, and I wanted to know —they were down there in the Title Company, and West End Park, as I understand, was owned by the Title Company. Of course, I did not know, and told him wh'at I was doing, that I was cheeking it for the purpose of placing a pay-roll loan in favor of Mrs. Ella Mitchell; and he told me that the title was all right, vested in the West End Park Company, and I came down to the court-housé, and I think I got a report from Mr. Campbell showing that the taxes had been paid. . . I had had several transactions like that with E. T. & George J. Morris, and the salesmen who make the sales
Q. “Did you or not tell him that Mrs. Mitchell was making a pay-roll loan on those two lots of $2500 each?” A. “Yes, that I would get a check for $250 from Mrs. Mitchell to make the cash payment on the lots. I do not recall that I told him that Mrs. Mitchell’s loan deeds matured in three months time. I do not recall whether I showed him the loan deeds from Black to Mrs. Mitchell before the trade was actually closed by the payment of the cash payment to the West End Park Co. and the delivery to me of Black’s warranty deed. It wras discussed there two or three times, in Mr. Campbell’s office.” Q. “State whether or not, as a result of your conversation and negotiations, at the time you spoke of, you understood that Mrs. Mitchell’s loan deeds were to be paid —if it was stated — did you state to Mr. Campbell that Mrs. Mitchell’s loan deeds were to be paid off by Black in the end, when he got his permanent loan, provided for in the sales contract and in the loan deed from Black to West End Park?” A. “Yes, that was discussed, relative to the subordination of Mr. Campbell’s claim for
Q. “And you were representing Mrs. Mitchell in that transac
George A. Campbell, in rebuttal, testified: “In January, 1929, I was the secretary of the West End Park Company. When Mr. Everett, of the Morris Company, brought me a signed proposal from Elvy Black for these lots, I submitted it to Mr. Davis, got his approval on it, and after he did approve it I signed it and gave it back to Mr. Everett, and kept one copy for our file. I did not have any conversation with Mrs. Ella Mitchell or with her husband, M. J. Mitchell, with reference to Mrs. Mitchell making some loans on this property. The only conversation I had with Mr. Jackson, her attorney, was after the deal had been closed and the papers had been signed, and I happened to be coming to the court-house at that time, and brought the papers to file them for record; and when I got to the clerk’s office Mr. Jackson was there, and he made the statement that he had beat me to the record. I said, ‘What do you mean?’ He said, ‘I have filed my deed ahead of yours.’ I said, ‘What deed do you have reference to?’ He said, ‘The deed from Black to Mrs. Mitchell.’ I do not recall whether Mr. Jackson came by our office and had a conversation with me at the time of this Elvy Black transaction about his examining the title for the loan of Mrs. Mitchell.”
Counsel for Mrs. Mitchell then introduced the two original purchase-money security deeds from Elvy Black to West End Park Co.; dated January 10, 1929, also the two original security deeds from Black to Ella Mitchell, dated January 16, 1929, both filed for record January 16, 1929, being the same deeds referred to and described in the agreed statement read in evidence.
Counsel for the West End Park Company then read into the evidence paragraph 5 from the original bill filed by Long in this case, as follows: “Your petitioner shows that the defendant, Elvy Black, has undertaken 'to improve said property by the erection of
The court, on motion directed a verdict in favor of Mrs. Mitchell. The West End Park Company did not move for a new trial, but brought the case to this court by direct bill of exceptions. The first assignment of error is on the admission in evidence, over the objections stated, of the agreed statement heretofore quoted. In the second and third assignments complaint is made of the direction of the verdict. The fourth exception complains of the ruling excluding from evidence testimony of E. G-. Jackson, as follows: While Jackson was on the stand, and after he had testified that West End Park Company had previously sold a lot to E. D. Paxon, on which Mrs. Mitchell had made a pay-roll loan, and had identified the purchase-money security deed from Paxon to the West End Park Co., and the pay-roll loan deed from Paxon to Mrs. Mitchell, and liad further stated that at the time of the Paxon-loan, which was about one year before the Elvy Black loan, Mrs. Mitchell- made second mortgages, but that after the Paxon loan she had instructed her attorney not to make any more loans on second mortgages, and that “she instructed me not to put into any deed, after that, that it was subject to another deed, the witness was then asked the following question: “Did you ever advise West End Park Company that you were under these instructions?” To which question he answered : “No, sir, I did not tell them.” This question and answer were objected to on the ground that “it was not his duty to tell the West End Park Company anything; it was their duty to inquire.” The court sustained the objection and ruled out the question and answer. The fifth assignment is that the court erred in excluding from evidence the two loan deeds from Paxon to Mrs. Mitchell, which' were offered as illustrating prior transactions between Mrs.’Mitch?
The court did not err in admitting in evidence a portion of an alleged agreed statement of facts. This extract from the agreed brief of evidence had been considered and approved by the court as a part of the evidence upon the former trial between the same parties, in which were presented the same issues as are involved in the present adjudication. The objections offered were, that said paper- was not an agreed statement of facts; that it was never contemplated to be used in a jury trial; that, properly construed, it had nothing to do with this case at the time, as it was merely for temporary use to go to the Supreme Court; that it was prepared by attorneys for Mrs. Mitchell, and if there were any doubt of its meaning it should be construed against her; that it was not intended as an ultimate statement of facts, but merely as a statement of the evidence that had been introduced in the former trial.
The entry of a judgment after the direction of a verdict by the court is harmless in cases'where the verdict is set aside, in which case the judgment becomes functus officio.
In the fourth assignment of error complaint is made that the court erred in excluding certain testimony to the effect that in a previous course of dealing Mrs. Mitchell had been accustomed to take security for loans advanced by her, subject and inferior to the deeds by which the West End Park Company was secured in the collection of purchase-money for its lots, and that, not having been informed that Mrs. Mitchell had adopted a new course of procedure, it was thereby misled to its injury. The fifth assignment of error complains of the exclusion by the court from evidence of certain deeds offered in connection with the testimony above referred to. These objections are without merit, especially in view of the evidence that the deeds in this particular instance (and with these alone could the court be concerned) from Black to the West End Park Company were delivered by Mr. Campbell, the secretary of the company, to Mr. Jackson, the attorney representing Mrs. Mitch
The court erred in directing a verdict in favor of the plaintiff, because there were issues of fact which should have been submitted to the jury. The evidence did not demand the verdict which the court directed the jury to ñnd.
Judgment reversed.