Gaskins v. Gaskins ( 1913 )

Bussell, J.

John B. Gaskins brought an action of bail-trover against Doeia Gaskins and W. T. Bigell Sr., to recover possession of a deed to a certain house and lot in the town of Bay’s Mill, two notes of $500 each, executed by W. D. Lee, and a certificate of deposit for $1,380, issued by the Bank of Milltown. The action was dismissed on demurrer, and to this judgment exception is taken in the main bill of exceptions. Prior to the judgment of dismissal the trial judge allowed an amendment to the petition for bail, and the allowance of this amendment is the subject of a cross-bill of exceptions. In the original affidavit in the bail-trover proceeding the property which the plaintiff sought to recover was described as “one warranty deed conveying one house and lot in the town of Bay’s jMill . . , taken by Doeia Gaskins and W. T. Bigell Sr., in the iname of Doeia Gaskins instead of to petitioner, J. B. Gaskins, his money haying paid for said property;” also two notes of specified dates for $500 each, signed by W. D. Lee, which notes had been “taken payable to Docia Gaskins to defraud John B. Gaskins out of his land, the same being a part of purchase-money for 100 acres of land sold by said John B. Gaskins to said W. D. Lee;” and also “a certificate of time deposit issued by the Bank of Milltown for $1,380, or other large sum, to Docia Gaskins or to- W. T. Bigell Sr., for money placed in said bank by her, which money belonged to John B. Gaskins.” In the amendment the petitioner alleged the wrongful conversion by the defendants of the proceeds of the sale of the plaintiffs 100 acres of land which he had authorized them to sell to W. D. Lee; that the land was sold for $3,000, and the defendants received the proceeds, to wit, $3,000 in cash, and the two notes for $500 each; that a part of the proceeds was paid for the house and lot at Bay’s Mill which should have been conveyed to the plaintiff, and tha,t the certificate of deposit of $1,380 represented a part of this money. The transaction by which the defendants came into possession of the proceeds of the sale was set forth at length.

It is very apparent, if the allegations of the amendment to the petition are true, that the plaintiff is the victim of misplaced confidence, and is entitled to recover the proceeds of the sale made by his agents, which they have converted to their own use. But the description of the money is insufficient to supply that certainty of identification which in an action of trover is essential to a seizure. The money is not otherwise described than as “$3,000 in cash.” In McElhannon v. Farmers Warehouse & Commission Co., 95 Ga. 670 (22 S. E. 686), the money in question was described as “$3,500 lawful money of the United States,” and this description was held to be too vague and indefinite. There was some reference in the McFlhannon case to the fact that bond had been given, as a bond has been given in the present case, and this is adverted to by counsel for plaintiff in error; but, as was well said by Justice Lumpkin (referring to the McElhannon case, supra) in Harper v. Jeffers, 139 Ga. 761 (78 S. E. 174), “How does the fact of the giving or not giving of a bond appear [on demurrer to the sufficiency of the allegations of the petition], unless alleged in the petition?” That there is no pertinency in the fact that bond was given by the defendant in trover is settled by the ruling of the Supreme Court in Cooke v. Bryant, 103 Ga. 727, 730, 731 (30 S. E. 435), as well as in Harper v. Jeffers, supra. We think the lower court could prop- ' erly have held that the description of the money in the amendment was insufficient.

In the view we entertain of this case, however, it is not necessary to rule upon the question raised by the cross-bill of exceptions, as to the propriety of the amendment. Whether the amendment was correctly allowed or not, the allowance of the amendment had the effect of transforming the action into a proceeding equitable in its nature, and one which requires affirmative relief. The city court of Nashville was without jurisdiction to entertain such a proceeding. However, a plain defect, authorizing the dismissal of the action on general demurrer, either before or after the allowance of the amendment, is that the plaintiff himself shows that the title to the papers which he seeks to recover is in the defendant. Even if he could recover the deed, the notes, and the certificate of deposit, he would be in no better position than before. The deed does not convey title to him, but conveys title to Docia Gaskins. Upon it he could not recover possession of the land; and, indeed, the petition alleges that he himself is in possession of the lot at Bay’s Mill. The plaintiff could not recover upon notes payable to Docia Gas-kins, nor collect from the bank upon a certificate of deposit issued to Docia Gaskins and W. T. Eigell Sr. There is no question that trover will lie to recover deeds. Gay v. Warren, 115 Ga. 734 (42 S. E. 86, 90 Am. St. R. 151). And it may be used as a proper proceeding to recover possession of promissory notes. Rushin v. Tharpe, 88 Ga. 779 (15 S. E. 830); Fisher v. Jones, 108 Ga. 490 (34 S. E. 172). It may also be used to recover a bond with interest coupons attached. Merchants’ &c. Bank v. Trustees, 62 Ga. 271; Hoyle v. Jones, 35 Ga. 40 (89 Am. D. 273); Nutting v. Thomasson, 57 Ga. 418. Under these decisions we doubt not that Gaskins could by trover have recovered the notes mentioned in the present case, if they had been payable to Docia Gaskins or hearer, but, according to the record, they were payable to Docia Gaskins, and would not be negotiable without her indorsement; nor could he recover the certificate of deposit. If any of the writings mentioned in the present suit should be cancelled or reformed, this phase of the case would be properly cognizable only in a court of equity.

Judgment affirmed upon the main hill of exceptions. Gross-hill of exceptions dismissed.