Penny v. Cash , 201 Ga. 215 ( 1946 )

Where as here a receiver advertised land for sale as bounded on the east by a designated 42-acre tract, and the highest and best bid at such sale was confirmed by written order of the court, the eastern boundary of the land acquired by the purchaser is the 42-acre tract, irrespective of ambiguities that may be found in the deed executed by the receiver. Accordingly, where, in a suit by the receiver against the grantees of the purchaser to enjoin them from interfering with his possession, it is admitted that they are occupying 20 acres of such 42-acre tract, the verdict of the jury finding that they were not interfering with the possession of the receiver is contrary to law and the evidence, and the court erred in overruling the receiver's motion for new trial.

No. 15538. SEPTEMBER 5, 1946. The salient facts necessary to a decision of this case may be stated as follows: In 1933 Mrs. Fannie E. Potter died testate, owing a certain debt to W. W. Fowler, evidenced by a note secured by property which included the following described tract of land conveyed on January 2, 1931: "All that tract or parcel of land containing forty-two acres, more or less, lying in Oconee County, Georgia, being a part of the place known as the old Matthew W. Sykes home place, and being that part of the same which was the child's part of Mrs. Allie Connor, sister of the grantee [grantor?] herein, and which the said grantee [grantor?] bought from said Allie Connor and to which said grantee [grantor?] herein has had possession of for now more than thirty years; the said forty-two acres of land is bound on the north by property of J. P. Wise, on the east by property of Jim McLeroy; on the south by other land of grantee [grantor?]; and on the west by property of Nancy Sykes and J. P. Wise."

The debt not having been paid in full, Fowler, on July 23, 1935, brought suit in the Superior Court of Oconee County, Georgia, against Mrs. Nancy Sykes, as executrix under the will of Mrs. Potter, and obtained a general judgment and a special lien on the above described 42-acre tract and other realty not here in issue.

Execution and levy followed, and at the sheriff's sale Fowler became the purchaser of the property, including the 42-acre tract, and deeds were properly executed to him and he immediately went into possession.

Mrs. Potter was, at her death, the owner of a tract of land lying immediately west and southwest of the above described 42-acre tract, and on February 2, 1937, Fowler caused the Sheriff of Oconee County to levy thereupon to obtain by sale a balance due him by the estate. The advertisement of sale described the land as follows: "The following described property, to wit: 86 acres, more or less, situate, lying and being in the Town of Bogart (or the southern outskirts thereof) in the 246th militia district, Oconee County, Georgia, bounded on the north and west by the Watkinsville-Bogart public roads; east by the lands of Fowler and lands of Birt Owens, and south by lands of J. L. McLeroy."

During the pendency of this advertisement Mrs. Nancy Sykes, on February 17, 1937, filed an equitable petition in the Superior Court of Clarke County against W. W. Fowler and the sheriff, seeking to set aside the judgment rendered in favor of Fowler on July 23, 1935, to enjoin the defendants from proceeding with the levy and sale of the advertised property, cancellation of former deeds to Fowler, and other relief. After the issuance of temporary restraining and interlocutory orders by the court, Miss Ethel Sykes, daughter of Mrs. Nancy Sykes, intervened, alleging an interest in the estate, mental incapacity of her mother to discharge the duties of executrix; but adopting the allegations of the petition, and praying that a receiver be appointed to take charge of and administer the estate of Mrs. Potter. Upon this application the court allowed the intervention, made certain parties, and appointed L. Dennis Penny as receiver, and he immediately qualified and took charge of the estate.

With the approval of the court certain timber was sold from the 86-acre tract and the proceeds applied towards the debt due Fowler. Thereafter upon application of Fowler for a public sale of that tract to satisfy the balance due him by the estate, the court, on January 21, 1941, issued an order for the advertisement and sale of the said property for this purpose, the sale to be made on the first Tuesday in February, 1941, and to be confirmed by the court. Accordingly, the receiver, on January 21, 1941, advertised the land for sale as follows: "Will be sold under order of the superior court of the Western Circuit, between the legal hours of sale, on the first Tuesday in February, 1941, before the courthouse door of the county courthouse at Watkinsville, subject to confirmation by the court, the following described land, to wit: Eighty-six acres, more or less, situated, lying and being in the town of Bogart (or the southern outskirts thereof), in the 246th militia district, Oconee County, Georgia, bounded on the north and west by Watkinsville and Bogart public road; east by the lands of Fowler and lands of Birt Owens, and south by lands of J. L. McLeroy. The said land will be sold to the highest and best bidder subject to confirmation of the court."

On the date of the sale, February 4, 1941, Fowler, through his counsel, made in writing the following offer to the receiver: "On behalf of my client, Mr. Fowler, I herewith submit for him by his authority the following bid for the land advertised for sale today. The amount now due Fowler upon his judgment is $1700 to this date. His bid is that he will accept a deed to the said tract free of all liens in full satisfaction of his judgment. Kindly, therefore, transmit this bid to the court in your report, as the same is, under the order, to be made to the court not later than the coming Saturday."

This bid was transmitted to the court, which on February 8, 1941, entered the following order: "It appearing to the court that in accordance with orders of the court heretofore made . . every possible effort has been made to sell land of the above estate for the removal of encumbrances and for the best interest of the estate, and that the receiver, L. Dennis Penny, did in pursuance of an order of this court expose for sale before the courthouse door of Watkinsville, Oconee County, Georgia, on last Tuesday, February the 4th. 1941, eighty-six acres, with the order to report back to this court bids received for the confirmation of the court, and that only bid received by the said received is from W. W. Fowler, of Clarke County, Georgia, which bid is that he will accept a deed to said land free of any and all liens in full satisfaction of the judgment and fi. fas. that he holds against the said estate, the amount of which with principal, interest, and attorney's fees to this date is sixteen hundred and ninety-eight dollars, and that said bid is the highest and best bid received, and that said bid is as much as can be hoped for, after every effort by said receiver has been made, and that said judgment is a valid lien against all of the property of the said estate; it is, therefore, ordered and adjudged by the court that the said receiver, L. Dennis Penny, make and execute and deliver to the said W. W. Fowler a deed conveying title to the said tract of eighty-six acres of land, free of any and all liens, the said land being more accurately described as follows: Eighty-six acres of land lying and being in Oconee County, Georgia, on the outskirts of Bogart, Ga., in the 246th militia district, bounded on the north and west by the Watkinsville and Bogart public roads and east and south by other lands of said estate, J. L. McLeroy and others, and being a part of the lands of the said Mrs. Fannie E. Potter, deceased. And it is further ordered that, upon such deed being made and delivered to said W. W. Fowler, that . . the judgment above mentioned held by the said W. W. Fowler be marked satisfied of record by the Clerk of the Superior Court of Oconee County, Georgia, and that said W. W. Fowler be dismissed as a party to the above-named case, without costs. And it is further ordered that the said receiver make further report to this court as to the other property of the said estate."

The receiver thereupon executed and delivered to W. W. Fowler on the same date a deed describing the property conveyed as follows: "All that tract or parcel of land lying and being in Oconee County, Georgia, on the outskirts of Bogart, Georgia, in the 246th militia district, bounded on the north and west by the Watkinsville and Bogart public roads; and on the south and east by other lands of the said estate, J. L. McLeroy and others, and being a part of the lands of the said Mrs. Fannie E. Potter, deceased."

Fowler, on the same date, February 8, 1941, executed and delivered to the receiver a deed quitclaiming: "All of the property, both real and personal, of the estate of Mrs. Fannie E. Potter, deceased, except that portion thereof deeded this day by said L. Dennis Penny, receiver as aforesaid, to the said W. W. Fowler, the same being eighty-six acres of land of the said estate, which the said receiver has this day deeded to said Fowler in pursuance of an order of the Superior Court of Clarke County, Georgia, in the case of Sykes, executrix, estate of Mrs. Fannie E. Potter, deceased, v. W. W. Fowler et al., being case Number 7315 in said Clarke County Superior Court, except that said estate is liable for all taxes due by said estate to date."

Fowler, on January 1, 1942, executed and delivered to W. B. Cash Jr. and Mrs. Christine Fowler Cash a deed reciting a consideration of love and affection and conveying the land described as follows: "All that tract or parcel of land lying and being in Oconee County, Georgia, more particularly described as follows: Eighty-six acres of land lying and being in Oconee County, Georgia, on the outskirts of Bogart, Georgia, in the 246 militia district, bounded on the north and west by the Watkinsville and Bogart public roads and on the south and east by other lands of the said Fannie Potter estate, J. L. McLeroy and others, and being a part of the lands of the said Mrs. Fannie E. Potter, deceased."

On May 5, 1945, the receiver filed in the Superior Court of Clarke County a report or equitable petition alleging that W. W. Fowler, W. B. Cash, and Mrs. Christine Cash had taken possession of a portion of the 42-acre tract and refused to surrender the same to the petitioner. He prayed that he be put in possession of the entire 42-acre tract, and that the persons named be ordered to cease and desist from interfering with the possession of same by the receiver, and for such other order as may be necessary to restore possession to him. Fowler filed an answer denying that he was interfering with the possession of the receiver, and alleging that on January 1, 1942, he had executed and delivered a gift deed, to W. B. Cash Jr. and Mrs. Christine Fowler Cash jointly, to the land which had been conveyed to him by the receiver, Mrs. Cash being the daughter of Fowler and the wife of W. B. Cash Jr.; that the respondent was not in possession of the land, and had not been since he executed the deed of gift, and that in fact a short time before executing the deed he had delivered the land to his daughter and his son-in-law. He prayed that he be discharged as a defendant as not being a proper party. Cash and his wife answered, admitting in effect that they had taken possession of 20 acres of the 42-acre tract, and asserting that under the deed to Fowler and his deed to them they were entitled to 86 acres of the Potter estate and had surveyed the land to make 86 acres.

Thereafter the case came on for trial. In addition to the documentary evidence above mentioned, there was certain oral testimony, which we have not deemed necessary to set forth. At the conclusion of the evidence the court dismissed W. W. Fowler as a party to the case on the ground that the evidence showed that he had not interfered with the possession of the receiver. The court then submitted to the jury the single question: Are W. B. Cash Jr. and Mrs. Christine Fowler Cash, the defendants, interfering with the possession of the receiver as to the 42-acre tract? The jury answered "No," and judgment was entered in favor of the defendants.

The receiver filed a motion for new trial on the usual general grounds and by amendment added several special grounds. The exception here is to the judgment overruling the motion for new trial. Since the controlling issue turns upon a receiver's deed, it is important that certain law applicable to such a sale be observed. The sale by the receiver was a judicial sale. Southern CottonMills v. Ragan, 138 Ga. 504 (1) (75 S.E. 611); Alexander v. Holmes, 180 Ga. 397 (179 S.E. 77). To such a sale the maxim caveat emptor applies. Kurfees v. Davis, 178 Ga. 429 (173 S.E. 157). Confirmation by the court is an essential part of such sale. Hall v. Taylor, 133 Ga. 606 (66 S.E. 478);Pledger v. Bank of Lyerly, 157 Ga. 229 (121 S.E. 228);Hurt Building Inc. v. Atlanta Trust Co., 181 Ga. 274 (182 S.E. 187); Sims v. Ramsey, 186 Ga. 732 (2) (198 S.E. 770). When the bid has been accepted and confirmed, the bidder is legally bound to pay the amount of his bid, and the receiver is likewise bound to convey the property sold when the purchaser has paid the amount of his bid. Allen v. Bemis, 193 Ga. 556 (1) (19 S.E.2d 516). The purchaser is entitled to be put in possession of the land bought. Foughnan v. Bashlor, 163 Ga. 525 (136 S.E. 545); Alexander v. Holmes, 180 Ga. 397 (179 S.E. 77). The purchaser at a judicial sale depends for his title upon (1) the judgment, (2) the levy, and (3) the deed. Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430); Keen v. McAfee,116 Ga. 728, 731 (42 S.E. 1022); Leathers v. Garrett,179 Ga. 619, 621 (176 S.E. 638). This last-named rule of law, when applied to a receiver's sale, means that the purchaser depends upon (1) the order to sell, (2) the offer of sale by public outcry or otherwise, (3) the bid, (4) the confirmation, and (5) the deed. Thus a clear legal distinction is made between the construction of a receiver's deed and a deed by private parties in a private sale.

At the time Fowler made his bid for "the land advertised for sale today," it was being advertised as "eighty-six acres, more or less, . . bounded . . east by lands of Fowler and lands of Birt Owens," etc. The recital that it was bounded on the east by lands of Fowler was at the time an accurate statement in point of law. Although certain litigation had been instituted by the representative of the Potter estate to set aside a judgment previously obtained by Fowler, as well as a deed conveying to him the 42-acre tract, which was east of the 86-acre tract, and certain temporary restraining and interlocutory orders had been issued against him by the court, the legal title to the 42-acre tract still remained in Fowler. It is clear, therefore, that the receiver's advertisement did not purport to be notice of a sale of any land embraced in the 42-acre tract, and that only land of the Potter estate, south and west of such tract, was being advertised for sale. Hence, in making his bid through counsel for "the land advertised for sale today," Fowler necessarily committed himself to an acceptance of the tract south and west of the 42-acre tract, with no thought of bidding on land the title to which was at that time in himself.

The order of the court approving such bid from Fowler, while using a description somewhat at variance with that employed in the advertisement, shows by its express language an intention to approve the acceptance of a bid which, as we have stated above, could reasonably have no relation to any land embraced in the 42-acre tract. The fact, therefore, that the court, in authorizing the receiver to make and execute a deed conveying "86 acres of land," instead of "eighty-six acres, more or less," of the Potter estate as advertised can not reasonably be construed to evidence an intention of the court to approve a sale of more land than was being advertised for sale, but the order must be construed as approving the bid as made, to wit, for land west of the 42-acre tract.

The receiver's deed to Fowler purports to convey an 86-acre tract of land, but limits the boundary on the east by other lands of the Potter estate. Admittedly the only other land ever owned by the Potter estate east of and adjoining the 86-acre tract was the 42-acre tract. At the moment of the execution of the deed by the receiver, which, according to the recitals in the quitclaim deed from Fowler to the receiver, was anterior in point of time to the execution of the deed by the receiver to Fowler on the same day, the title to the 42-acre tract was in Fowler. Therefore the statement in the receiver's deed that the land conveyed to Fowler was bounded on the cast by other lands of the Potter estate was literally incorrect. But until Fowler acquired his deed to such 42-acre tract in 1935 the land belonged to the Potter estate, and the fact that it was this 42-acre tract by which the 86-acre tract was bounded on the east can not be disputed by the record. Fowler's deed quitclaimed "all of the property, both real and personal, of the estate of Mrs. Fannie E. Potter, deceased, except that portion thereof deeded this day by" the receiver "in pursuance of an order of the Superior Court of Clarke County," and therefore left him without the title he formerly held to the 42-acre tract, and evidences an intention that his bid did not relate to any portion of the 42-acre tract. We reach the conclusion that the deed from the receiver to Fowler on February 8, 1941, upon being construed with the other documentary evidence above discussed, did not convey any part of the 42-acre tract. Fowler had no title to the 42-acre tract to convey to Cash and his wife, and they claim no title save from him. A finding was demanded as a matter of law that the admitted possession by Fowler's grantees, Cash and his wife, of 20 acres of such tract was an interference with the possession by the receiver of lands belonging to the Potter estate. The finding of the jury that Cash and his wife were not interfering with the receiver's possession was unauthorized. The court erred in overruling the general grounds of the motion for new trial. Since the above ruling disposes of the case on a question of law, we deem it unnecessary to pass upon the special grounds of the motion for new trial.

Judgment reversed. All the Justices concur.