Hughes v. Purcell , 198 Ga. 666 ( 1944 )

1. "A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects; but in such case the demurrer should be renewed if it is still relied on." Livingston v. Barnett, 193 Ga. 640 (19 S.E.2d 385). Accordingly, when a demurrer to a petition has been overruled in part and sustained in part with leave to amend, and within the allotted time a material amendment is filed and no demurrer is filed to the amendment, nor is the original demurrer renewed to the petition as amended, but thereafter exceptions pendente lite are filed excepting to the ruling upon the demurrer, such exceptions to the order overruling the demurrer to the petition present only a moot question and will not be decided.

2. "Where a question comes collaterally before a court, and a judgment is rendered in the case, and it does not appear except by inference from the judgment and the pleadings that the question collaterally made was actually passed upon, the judgment will not be conclusive on the trial of another case between the same parties involving the same question." Bonds v. Brown, 133 Ga. 451 (66 S.E. 156).

3. In the instant action for specific performance, seeking to require the execution of a deed by the defendant to a one-half interest in certain land in accordance with the defendant's agreement so to do upon the performance of certain obligations assumed by the plaintiff, which it is alleged have been fully performed, the plea, which the defendant styles as res adjudicata, failed to set up a good defense in bar; nor would it be good if under the facts set forth it should be treated as a plea of estoppel by judgment. The direct issue in the former dispossessory proceeding, against the present plaintiff for nonpayment of rent, which is now pleaded in bar to the present action, was tenancy or no tenancy. Hayes v. Hayes, 137 Ga. 362 (3), 365 (73 S.E. 659); Patrick v. Cobb, 122 Ga. 80 (49 S.E. 806). Not only was the question of title not necessarily adjudicated in that proceeding (Code, §§ 110-503, 110-504; Sumner v. Sumner, 186 Ga. 390 (2), 197 S.E. 833), but under the pleadings in that case such question could not have been properly determined. This is true for the reason that, since the relationship of landlord and tenant was not denied, the defendant in that proceeding could not have been heard to dispute his landlord's title (Code, § 61-107), and could not have been heard to assert title in himself without first surrendering possession to his landlord. Smith v. Aldridge, 192 Ga. 376, 381 (15 S.E.2d 430). The rule just stated is applicable, even though, as here, at the time the rent contract was made, the tenant was already in possession of the premises and claimed title thereto. Willis v. Harrell, 118 Ga. 906 (10) (45 S.E. 794); Bullard v. Hudson, 125 Ga. 393 (54 S.E. 132). There was nothing in the counter-affidavit to suggest in anywise a change from the undisputed relationship of landlord and tenant. If such had been the case, a different question might have been presented. The counter-affidavit, while not denying the tenancy, nor that the defendant was in default for nonpayment of rent, sought only to set up a ground of defense which was not germane to the statutory ground under which he was sought to be ousted. The only defense contained in the counter-affidavit was thus wholly irrelevant to the issue made by the plaintiff's affidavit. The plaintiff did not contend that the defendant was holding over beyond his term; and the defendant by his counter-affidavit, without denying tenancy, merely set up that he could not be dispossessed as a tenant holding over beyond his term, for the reason that he was the equal owner of a half interest in the land. But one may, if he chooses, rent land to which he claims title; and the counter-affidavit, not being in response to the ground for dispossession sworn to by the plaintiff, set forth nothing which could have prevented the plaintiff from prevailing. Mothershead v. DeGive, 82 Ga. 193 (8 S.E. 62); Hindman v. Raper, 143 Ga. 643 (2) (85 S.E. 843). Consequently, it does not appear from the pleading in the former case that anything was adjudicated except the undisputed allegations in the plaintiff's affidavit. Nor is it now made to appear that the question was actually tried and determined, but on the contrary, the present plaintiff now shows without determined, but, on the contrary, the present the hearing of the former case, and that he offered no evidence on that trial.

(a) In view of the foregoing, it is here unnecessary to determine, just as it was in the case of Bonds v. Brown, supra, whether or not, if the question of tenancy had been raised by the counter-affidavit in the former case, and the question of title had been properly invoked and actually tried as a collateral issue, a finding thereon would operate as an estoppel in a subsequent proceeding between the same parties. See, in this connection, Garrick v. Tidwell, 151 Ga. 294 (106 S.E. 551); Evans v. Birge, 11 Ga. 265, 272, and cases cited. Nor is any adjudication made as to whether or not, in any event, the fact that the former case was tried in a municipal court would affect the rule.

4. The excerpt from the charge complained of, which is set forth in the statement of facts, together with the exceptions thereto, does not show reversible error for any of the reasons assigned. Especially is this true when the charge excepted to is considered in connection with its context, which is also set forth in the statement of facts.

5. The evidence, though conflicting, authorized the verdict, and there was no error in overruling the motion for new trial in case number 15034.

6. The foregoing rulings dispose of all the exceptions made in case number 15034 by the defendant Wills, and also all the exceptions made in case number 15027 by the defendant Hughes, who became the purchaser of the property from the defendant Wills with alleged actual notice at the time of his purchase, save the exception dealing with the admissibility of evidence. Testimony of the plaintiff with reference to a conversation with Hughes before his purchase, tending to show notice of the plaintiff's equity, had been admitted without objection. O. W. Wood, a witness for the plaintiff, who had purchased the property in litigation from Hughes subsequently to the filing of the instant suit, was asked on direct examination: "At the time you negotiated the sale with Hughes . . what did Hughes or Wills say to you when you mentioned Purcell's interest in the property?" The question apparently sought an admission by Hughes of notice, at the time of his purchase, of the plaintiff's claim; and if such an admission had been testified to, it would have been admissible whenever it was made. The witness then recounted the negotiations that he had with both Hughes and Wills leading up to his purchase. While the testimony in answer to this question does not appear to have indicated knowledge on the part of Hughes, at or before the time of his purchase, of any claim or equity of the plaintiff in the property, the only ground of objection which was made to the question, and the only ground stated in the motion subsequently made to rule out the testimony thus elicited, was that the conversation related to "something that took place after the suit was filed;" and, since the time when the conversations took place is wholly immaterial, there was no error in overruling the objection and motion to exclude for the reason assigned. Consequently, the motion for new trial in case number 15027, made by the defendant Hughes, also must be denied.

Judgment affirmed on both bills of exceptions. All theJustices concur.

Nos. 15027, 15034. NOVEMBER 21, 1944. REHEARING DENIED DECEMBER 4, 1944. Rufus Purcell sued J. G. Wills and J. I. Hughes for specific performance of an alleged parol contract, under which Purcell was to, and did, erect a building on a lot belonging to Wills, and thereupon Wills was to convey to Purcell an undivided half interest in the land, which land Hughes purchased from Wills with notice of Purcell's claim. The defendants answered separately denying the material allegations of the petition, and filed thereto a joint general and special demurrer, which was sustained as to paragraph five of the petition, alleging compliance with the agreement at an expense of $830.41 to the plaintiff. The grounds of this demurrer were: that said sum was not itemized; that said paragraph was vague and indefinite; that it did not show in what manner the house was erected; and that it did not show to whom said sum was paid. The remaining grounds were overruled, and the plaintiff was given leave to amend. A material amendment was filed within the required time to meet the grounds of demurrer which were sustained, setting up a bill of particulars which showed payments aggregating $830.41 and to whom each item was paid, and alleging that the building was erected in a good workmanlike manner. No demurrer was filed to the amendment nor to the petition as amended, but joint exceptions pendente lite were taken, after the filing of the amendment, to the order overruling the original demurrer. Separate pleas of res adjudicata were filed by each of the defendants and a plea of estoppel by judgment was offered by the defendant Wills, which was disallowed, to which ruling, it is alleged in the bill of exceptions, exceptions pendente lite were filed, but such exceptions pendente lite were not specified as part of the record and were not sent up therein. Each of these pleas asserted that a judgment in favor of Wills, a privy in estate with Hughes, against Purcell, awarding rent and possession of the premises in question to Wills under a dispossessory proceeding filed by Wills against Purcell, in which, as the pleas allege, Purcell filed his counter-affidavit alleging "that he is not holding over and beyond his term, because he and the said Wills had an agreement that Wills was to buy the land and that affiant was to build a house thereon, and that upon completion of said house Wills was to execute to affiant a deed to a one-half interest in and to said lands, but that said Wills now fails and refuses to execute said deed even though affiant has carried out his part of the contract." The pleas of res adjudicata showed that the affidavit on which the dispossessory warrant was issued alleged as the ground therefor that Purcell was in possession as tenant of certain premises of Wills, and that he "fails to pay the rent now due on said house and premises," and fails to surrender possession after demand. The plea of res adjudicata filed by Hughes was stricken on demurrer. The plea of res adjudicata filed by Wills was not demurred to. Each of the defendants tendered in evidence a certified copy of the pleadings and judgment in the dispossessory proceeding, showing the facts herein set forth, which was excluded upon objection, among others, that it was irrelevant because it showed that the judge in passing on the dispossessory warrant did not adjudicate title. The exceptions to its rejection were that: (a) it showed that the case was finally disposed of by judgment; (b) the counter-affidavit showed that the same issues were passed upon as those involved in the instant case; (c) the former judgment was an adjudication that no such contract existed as there pleaded, and was an estoppel by judgment; (d) because estoppel by judgment had been pleaded in a previous amendment, which was not demurred to, and at the time of disallowing this evidence the court had before it another amendment properly pleading estoppel by judgment of the municipal court of Atlanta (but which amendment had been disallowed when offered, without exception being preserved thereto). On conflicting evidence, both as to the performance of the contract and as to notice by Hughes of Purcell's claim at the time Hughes purchased the property, the jury found for the plaintiff; and motions for a new trial, filed separately by each defendant, were overruled. One of the grounds of the motion for new trial excepted to an excerpt from the charge, which excerpt, together with the context immediately preceding and immediately following the excerpt, follows, the portion excepted to being in italics: "Ordinarily an oral contract is not enforceable for land. Sales of land ordinarily come under what lawyers and courts call the statute of frauds — that is, contracts relative to these matters should be in writing. However, there are some exceptions, and I will read them to you now. This is a suit for specific performance of an oral agreement, and the law says: The specific performance of a parolor oral contract as to land shall be decreed if the defendantadmits the contract as claimed, or if it be so far executed bythe party seeking relief, and at the instance, or by theinducement of the other party, that if the contract shall beabandoned he cannot be restored to his former position. Fullpayment alone accepted by the seller would authorize theenforcement, or partial payment, accompanied with possession, orpossession alone with valuable improvements, if clearly andstrongly proved, as I have explained to you, in each case to bedone with reference to the parol contract, shall be sufficientpart performance to justify a decree, on behalf of the plaintiff.So you will see there are some exceptions, if there be acontract, and you will have to determine whether there was, andif so, what it was — if it has been so far executed by the partyupon whom the burden rests to execute it, that he cannot berestored to his former condition. Full payment accepted by theother party is an exception. Partial payment accompanied withpossession, or possession alone with valuable improvements —those are exceptions to the statute of frauds as applied to land.So remembering that the burden is on the plaintiff to prove hiscase clearly and strongly, as I have explained — that is thefirst question that you will have to answer — what the contractwas, if any, its exact terms, whether or not it was complied withby Purcell, and whether or not it comes within one of thoseexceptions to contracts in writing, which exceptions authorizeoral or parol contracts to be executed in the nature of specificperformance when those conditions have been found to have beencomplied with by the person seeking enforcement of the contract.If there was a contract, if he has shown clearly and strongly by the evidence, as I have explained, that he hascomplied with the terms of the contract, then, so far as that isconcerned, he would be authorized to recover. If there was a contract between the parties as claimed, and Purcell did not comply with the contract as made, then he would not be authorized to recover." The substance of the exceptions to this excerpt from the charge are: (a) its failure to state the necessity for the plaintiff to show such performance on his part as would entitle him to a decree for specific performance in a court of equity; (b) that it practically told the jury that the plaintiff should recover if they believed that he had been in possession, or had made a substantial payment, or could not be put back in status quo, or had made valuable improvements on the land; (c) that it was confusing and would cause the jury to believe that the plaintiff was entitled to a decree if he had done any of these things to take the case out of the statute of frauds, even though he had not completed his contract; and (d) that it was not applicable to the facts, practically amounted to a directed verdict on vital issues, on which the testimony was conflicting, stressed the exceptions to the statute of frauds, and practically ignored the proposition that the contract must have been fully complied with before the plaintiff would be entitled to a decree. Exception was taken to the order overruling the demurrer to the petition; to the order sustaining the demurrer to the plea of res adjudicata; to the disallowance of an amendment asserting estoppel by judgment, filed by the defendant Wills, to which exceptions pendente lite were alleged to have been filed but were not specified as part of the record or incorporated therein; and to the order overruling the motion for new trial, which motion complained of the admission of the testimony referred to, the rejection of the certified copy of the dispossessory proceeding, and the indicated portion of the charge, all of which are dealt with in the syllabus opinion.