Johnson v. Boyd , 202 Ga. 531 ( 1947 )

1. The trial court did not err in allowing an amendment offered by the plaintiff, after the auditor had filed his report, and while exceptions thereto were pending, the purpose of which was to make the pleadings conform to the evidence already admitted on the hearing, so that the same would support a decree administering the proper equitable rights of all the parties, upon the facts reported by the auditor.

2. The auditor being authorized to find, under the facts of this case, that the foreclosure deed in question was fraudulent and void, his finding must be sustained under the well-recognized rule that, if a judgment is right for any reason, it should be affirmed.

3. The portion of the final decree, providing that the plaintiff recover of the defendants a certain sum as of a specified date and a stated monthly rental thereafter until possession of the property be delivered to the plaintiff, was supported by the finding of the auditor.

Nos. 15857, 15867. JUNE 12, 1947. REHEARING DENIED JULY 11, 1947. E. F. Boyd Sr., as administrator of the estate of R. L. Bartlett, deceased, filed a petition in Cook Superior Court against Charlie Johnson and Ella Johnson, which, as first amended, alleged substantially the following: R. L. Bartlett died intestate on October 14, 1940, seized and possessed of a described tract of land. He was survived by a window, Etta Mae Bartlett, and a son, Bill Bartlett. The petitioner is the duly appointed administrator on the estate of Bartlett, and seeks possession of the real estate for the purpose of sale to pay debts of the estate and for distribution among the heirs at law. The prayers were for process and for a recovery of the property with mesne profits.

The defendants filed an answer in the nature of a cross-petition. averring that they were in possession as the tenants of W. M. Fambro, and seeking to enjoin the petitioner from proceeding against other named tenants.

The petition was again amended, by alleging that Fambro was the real defendant, and that he had damaged the petitioner by removing from the lands a tobacco barn and had also collected rents; and praying for a recovery of the value of the barn and for the rents so collected, and that he be made a party defendant. The amendment was allowed and Fambro was made a party defendant.

The case was referred to an auditor, who after hearing evidence found in favor of the plaintiff. The defendants filed exceptions to the report of the auditor.

The plaintiff presented another amendment to the petition, in which he alleged that certain deeds under which the defendant, Fambro, claimed were void, and prayed for cancellation of same. The amendment was allowed over objections by the defendants, and exceptions pendente lite were duly filed to this ruling.

On December 2, 1946, the auditor, in pursuance of an order of the court, filed an amendment to his original report, giving additional reasons for holding that a foreclosure deed, under which the defendant, Fambro, claimed title, was void.

On March 29, 1947, the defendants presented an amendment to their exceptions to the auditor's report, and the same was allowed.

On March 29, 1947, the court overruled and disapproved all exceptions of law and fact as amended, thus sustaining the auditor in all of his findings both of law and of fact, and on the same date the court entered a final decree. The defendants in a direct bill of exceptions assigned error on each of these rulings, and also assigned error upon their exceptions pendente lite.

The plaintiff, in a cross-bill of exceptions, assigned error upon a judgment overruling a demurrer and motion to strike the defendants' exceptions to the auditor's report.

Other facts will be stated in the opinion. 1. Generally, pleadings are amendable at any stage of the cause. Code, § 81-1301. "A petition inequity may now be changed by amendment into an action at law, where the amendment is not otherwise objectionable; and the converse, of course, is equally true." Harrell v. Parker, 186 Ga. 760 (3) 768 (198 S.E. 776).

The court did not err in the present case in allowing an amendment offered by the plaintiff, after the auditor had filed his report, and while exceptions thereto were pending, the purpose of which was to make the pleadings conform to the evidence already admitted on the hearing, so that the same would support a decree administering the proper equitable rights of all the parties, upon the facts reported by the auditor. Milner v.Mutual Benefit Building Assn., 104 Ga. 101 (3, 4) (30 S.E. 648); Curelon v.Curelon 120 Ga. 560 (2) (48 S.E. 162); Sterling ElectricCo. v. Augusla Telephone Electric Co., 124 Ga. 371 (1) (52 S.E. 541); Green v. Andrew, 133 Ga. 193 (8) (65 S.E. 416); McCord v. Jackson 135 Ga. 176 (3) (69 S.E. 23);Pills v. Eppinger, 150 Ga. 479 (1) (104 S.E. 203); Lane v. Tarrer, 153 Ga. 570 (7) (113 S.E. 452); Whitmire v.Thompson, 173 Ga. 174 (6) (159 S.E. 859); Mobley v.Russell, 174 Ga. 843 (2), 846 (164 S.E. 190).

2. A controlling question, in so far as the alleged error in overruling the exceptions to the auditor's report is concerned, is whether the auditor erred in finding that the foreclosure deed executed by W. M. Fambro, as attorney in fact of R. L. Bartlett, to W. M. Fambro, dated August 5, 1941, was for stated reasons fraudulent and void.

While the reasons given by the auditor might have been subject to various exceptions, yet the facts were sufficient to authorize the finding that the deed was void.

It is a well-recognized rule that, if a judgment is right for any reason, it should be affirmed. Barksdale v. SecurityInvestment Co., 120 Ga. 388 (4) (47 S.E. 943); Huggins v.Southeastern Lime Cement Co., 121 Ga. 311 (1) (48 S.E. 933); Berry v. Robinson, 122 Ga. 575 (2) (50 S.E. 378);Hill v. Smith, 157 Ga. 210, 212 (121 S.E. 214); Citizens Southern Bank v. Union Warehouse Co., 157 Ga. 434 (6b) (122 S.E. 327); Cone v. Davis, 179 Ga. 749 (4) (177 S.E. 558); Cash v. Cash, 180 Ga. 567 (1) (179 S.E. 629);Coker v. Atlanta, 186 Ga. 473 (1) (198 S.E. 74); Guffin v. Kelly, 191 Ga. 880 (4) 890 (14 S.E.2d 50).

In the present case there was evidence before the auditor to the following effect: R. L. Bartlett, being indebted to W. M. Fambro, who held several security deeds covering the property sued for, entered into an agreement with Fambro whereby the latter was to take possession of a portion of the property and collect the rents from two houses located thereon until the debt was paid. Acting under the agreement. Fambro took possession of the two houses and collected the rents from August, 1939, to the date of Bartlett's death on October 14, 1940, and thereafter until August 5, 1941, at which time he sold the property under a power contained in one of the security deeds. The property, valued at from $2000 to $3000, was bought in by Fambro for $500. At the time of the sale, Bartlett's estate was unrepresented, his widow was out of the State and did not have sufficient mental capacity to engage in business transactions, and the whereabouts of his only son, who was practically blind and of low mentality, was unknown. Fambro was an astute business man.

The petition as amended sought equitable relief, and the pleadings and evidence were sufficient to show such inadequacy of consideration and great mental disparity between the widow of Bartlett and his son on the one hand, and Fambro on the other hand, as would under the Code, § 37-710, justify a court of equity in setting aside the sale under the power contained in the security deed. Accordingly, it cannot be held as a matter of law that the auditor erred in finding that the foreclosure deed in question was fraudulent and void. See Scott v. Gillis,202 Ga. 220 (43 S.E.2d 95).

Under the facts of the present case it is not necessary to decide whether the agreement to accept possession of two houses, and to collect rents therefrom until the debt was paid, which agreement was acted upon for two years would, in the absence of fraud, have prevented the grantee in the security deed from exercising the power of sale, or whether such agreement amounted merely to an additional method by which the grantee in the security deed could have collected his debt.

While the foregoing ruling disposes of a controlling issue in the case, an examination of the record in its entirety shows the exceptions taken to the findings of the auditor to be without merit, and that all such rulings and findings of the auditor, as approved by the trial judge, are supported by the evidence and in accordance with law.

3. The plaintiffs in error except to the following portion of the final decree: "That the plaintiff recover of the defendants the sum of $178.23 as of January 17, 1947, and the sum of $20 per month as rents until the said defendants deliver possession of the property hereinbefore described to the plaintiff." The criticism is that such judgment, so incorporated in the final decree, is wholly unsupported by any of the findings of the auditor in his report, as amended, and therefore such portion of the decree is contrary to law.

The portion of the final decree to which exceptions are taken is supported by the finding of the auditor that the estate of R. L. Bartlett deceased is indebted to W. M. Fambro in the sum of $201.77 as of June 2, 1945, with interest at 8 percent per annum, and subject to credits for rentals of the property sued for at the rate of $20 per month, until such time as the possession thereof shall be put into the plaintiff. From such finding, it is only a matter of calculation to arrive at the correct amount that was due on January 17, 1947, and the plaintiffs in error do not insist that the court erred in finding that $178.23 was the correct amount as of the above date. There is no merit in this exception.

Judgment affirmed on the main bill of exceptions. Cross-billdismissed. All the Justices concur.