Perry v. First Mutual Building & Loan Ass'n , 174 Ga. 914 ( 1932 )

A verdict in a suit for permanent alimony in the words, "We further find that the plaintiff is entitled to permanent alimony against the defendant, and fix the same as follows: that the plaintiff is entitled to all of the interest of the defendant, either legal or equitable, in the following described real estate, . ." properly construed, awards to the wife the interest of the husband in the property described as it existed at the time of the rendition of the verdict. The terms of the statute (Civil Code (1910), § 2954), when complied with by scheduling the property owned or possessed by the husband at the time of the application, constitute notice to the world that the wife will seek an award of alimony out of such property described. One who acquires an interest in such property before the rendition of the verdict in the alimony suit takes it subject to any verdict lawfully rendered. If the verdict awards to the wife less than the whole of such property or less than the entire interest in such property, that portion or interest not awarded in the verdict is unaffected by the doctrine of lis pendens under the Code, § 2954. Therefore the verdict in this case awarding permanent alimony must be construed as awarding only such interest as the husband still possessed at the time of the rendition of the verdict. Civil Code §§ 2954, 2955, are restraints upon the alienation of the husband's property. Their effect on the title, where the husband has conveyed pending a suit for divorce and alimony, should be strictly construed. "The restriction upon the free alienation of property by the owner is contrary to public policy, and will not be extended by construction beyond the plain intent and meaning of the law."Lamar v. Jennings, 69 Ga. 392; Russell v. Rice, 103Ga. 310 (30 S.E. 37); Singleton v. Close, 130 Ga. 716 (61 S.E. 722); Stephens v. Stephens, 168 Ga. 630, 639 (148 S.E. 522); Chero-Cola Co. v. May, 169 Ga. 273, 276 (149 S.E. 895, 66 A.L.R. 1469).

2. The court overruled the general demurrer to the petition, as well as the special demurrers which were based upon the contention that there was a misjoinder of causes of action, because the petition sought a general money judgment against Maddox and Mrs. Payne, while Addie Mae Perry had no interest in the judgment sought against Maddox and Mrs. Payne. Under the ruling in Conley v. Buck, 100 Ga. 187 (28 S.E. 97), all of the parties defendant could properly be included in one suit with prayers appropriate to the different judgments sought with respect to each.

3. Plaintiff in error contends that a merger, as a matter of law, resulted from the purchase, at an improvement-tax sale, of the property, the legal title to which the Loan Association already held by its security deed. This contention is contrary to the principles ruled in Pope v. Hammond, 168 Ga. 818 (149 S.E. 204). The Loan Association in no way indicated its intention to merge the estates; and a merger being against the interest and to the disadvantage of the association, an intent not to merge will be presumed.

4. The petition alleges: (a) Maddox is insolvent. (b) Perry would dissipate the rents and profits, if permitted to retain possession. (c) Payne is a woman of small means, unable to respond to a judgment against her. (d) Since the divorce decree was rendered Perry had been in possession, about $200 in rentals had accumulated, and were being held by rental agents pending litigation. Held: (1) The court did not err in overruling the demurrers. (2) It was error to appoint a receiver, because it was not alleged that the plaintiff was unable to recover the amount due out of the property conveyed by the security deed. Dickson v. Hutchinson, 173 Ga. 644 (161 S.E. 139), and cit.

5. In view of the ruling stated in the first headnote, the question of lis pendens need not be decided, because it can not in any way affect the result.

Judgment affirmed in part, and reversed in part. Russell, C.J.,Beck, P.J., and Atkinson and Hill, JJ., concur. On August 8, 1927, Addie Mae Maddox brought in Fulton superior court against "Columbus Maddox" a suit for divorce, alimony, and the recovery of her maiden name, which was Perry. Her petition alleged that the defendant owned a house and lot in Atlanta "known as 865 West Mitchell Street, lot being approximately forty (40) feet front by two hundred (200) feet deep, with a frontage on two streets, and there is a duplex house on said property, out of which the defendants get, in addition to the use of same, the sum of $25 a month; that said property is worth approximately $8000." On February 27, 1928, "Christopher C. Maddox" borrowed $2100 from First Mutual Building Loan Association, and secured the same by deed conveying realty lying in Atlanta, described as "beginning at a point on the south side of Maiden Lane (now called Ashby Place), four hundred thirty-five (435) feet east of the southeast corner of Maiden Lane and Ashby Street, thence extending east along the south side of Maiden Lane forty (40) feet, thence south one hundred (100) feet, thence west forty (40) feet, thence north one hundred (100) feet to Maiden Lane and point of beginning; being the north half of lot ninety (90) of the Ware and Owens subdivision of the F.D. Thurman property, and being the same property conveyed to John H. Williams by George C. Drummond, Nov. 20th, 1911, and by John H. Williams to Loring B. Palmer, Jan. 5th, 1915." On December 4, 1928, the property covered by the deed was sold to satisfy a fi. fa. in favor of the City of Atlanta for a curbing assessment, and First Mutual Building Loan Association acquired the property by a deed from the purchaser at the sale under execution. On June 5, 1929, a final decree was entered in the divorce suit, providing "that the plaintiff is entitled to all of the interest of the defendant, either legal or equitable, in the following described real estate: all of that city lot in the City of Atlanta, State of Georgia, and County of Fulton, known in the plan of said city as 865 West Mitchell Street forty (40) feet, more or less, and running back equal width on parallel lines two hundred (200) feet to an alley or unnamed street, together with the houses and buildings thereon," and restoring to her the name "Perry."

On August 11, 1931, First Mutual Building Loan Association filed an equitable petition against "Christopher C. Maddox," Addie Mae Perry, and Mrs. J.W. Payne, alleging, in addition to what is stated above, that at the time it took its deed the title to the property stood in the name of "Christopher C. Maddox;" that the divorce suit was against "Columbus Maddox;" that petitioner did not know that "Columbus" was "Christopher C." Maddox; that it had no notice of the pendency of the divorce suit or of any circumstances to put it upon inquiry; that it had the title examined by an attorney, who reported that it was unencumbered except for liens for labor and material used in its improvement; that at the time its loan was made "Christopher C. Maddox" made affidavit, that, excepting the liens mentioned and taxes for 1928, the property was unencumbered; that on April 10, 1928, C.C. Maddox conveyed the property to Mrs. J.W. Payne, who assumed the payment of the debt due petitioner; that because of the divorce decree Addie Mae Perry was claiming an interest in the property adverse to petitioner, and such claim constituted a cloud upon its title; that the deed and note evidencing the debt due to petitioner provided for acceleration of the entire amount in case of default in payment of the installments required; that such default had occurred, and petitioner had declared the whole debt due; that since the divorce decree possession of the property had been delivered to Addie Mae Perry, and she had recognized the rights of petitioner by making payments to it, and she is estopped from denying the validity of petitioner's claim as a first lien upon the premises; that about $200 rentals derived from the property had accumulated in the hands of agents named, which Addie Mae Perry "permitted to be turned over" to petitioner, but which was being held by the agents "on account of the disputes involved in this suit;" that Christopher C. Maddox is insolvent; that Addie Mae Perry is a colored school-teacher and would dissipate the rents and profits if permitted to remain in possession; that Mrs. Payne is a woman of small means and would be unable to respond to a judgment against her in the case. The prayers were for the appointment of a receiver to collect the rents and pay taxes and insurance premiums; that the property be sold, and the claims and liens of the parties to the suit be awarded by the final decree in accordance with their rights; that the defendants be enjoined from collecting the rents; that petitioner have against Christopher C. Maddox and Mrs. Payne a decree for its debt, with a special lien against the property; and for general relief.

Addie Mae Perry demurred on the grounds that the petition did not state a cause of action or show that petitioner was entitled to the relief sought, but that the statement of facts contained therein did show that petitioner was not entitled to such relief. She also demurred specially on the grounds (1) of misjoinder of causes of action, because the petition sought a general money judgment against Maddox and Mrs. Payne, in which Addie Mae Perry had no interest; and because the petition sought to set aside a judgment in favor of Addie Mae Perry, in which neither Maddox nor Mrs. Payne have any interest; (2) of misjoinder of defendants, because Addie Mae Perry had no interest in the judgment sought against Maddox and Mrs. Payne. The court overruled the demurrers and appointed a temporary receiver. Addie Mae Perry excepted.