Bleckley v. Robertson , 194 Ga. 36 ( 1942 )

In the trial of a claim case, where a prima facie case was made out for the claimant, and the evidence tended to show that the asserted title of the defendant in fi. fa. was based on a security deed the consideration of which was the settlement of a criminal prosecution, it was erroneous to direct a verdict in favor of the plaintiff in fi. fa.

No. 14114. MAY 26, 1942. The salient facts and the issues in this case arising therefrom may be thus briefly stated: On October 1, 1932, Edwin Bleckley executed to R. P. Robinson a deed conveying the real estate in question in Rabun County, for the recited consideration of ten dollars and other good and valuable considerations, and that Robinson was to assume payment of the accrued taxes against said property. There were at that time unpaid taxes against this and other property of the grantor for the years 1928, 1929, 1930, 1931, and 1932. Simultaneously with the execution of this deed a written agreement was made between the parties, to the effect that Robinson was the owner of an invention of a certain kind of clothesline, a patent for which had been applied for, and that the sole consideration for the deed was that Bleckley should have the patent rights for specified counties in the State of Florida and the sole and exclusive right to sell, by himself and his agents, the clothesline in those counties; the agreement further providing that in the event the application for patent should be rejected, Robinson would pay Bleckley $700 for the realty. Both the deed and the agreement were recorded. On October 24, 1932, Robinson executed to B. C. Robertson a deed to the same realty to secure the payment of a promissory note for $216. On September 25, 1934, Bleckley filed in the superior court of Rabun County his petition against Robinson, a non-resident of this State, alleging the facts with respect to his deed to Robinson and the agreement above referred to (citing the book and page where they were recorded); that the patent applied for had not been granted; that, contrary to the stipulation in the deed that he was to assume payment of the accrued taxes on the realty, Robinson had paid no taxes; and that tax executions for five years had been issued against Bleckley, some of which were against the realty in question, but they were levied on other realty belonging to Bleckley and sales were made thereunder. He prayed for cancellation of his deed to Robinson, for failure of consideration. Robinson answered, admitting certain allegations and denying others. On August 30, 1935, a jury found in favor of cancellation, and the judge so decreed.

On the affidavit of B. C. Robertson, returnable to the November term, 1933, of the superior court, an attachment execution was issued and levied on the land in question. On December 1, 1934, an execution was issued from that court, based on a judgment rendered therein on August 27, 1934, in favor of B. C. Robertson and against R. P. Robinson, being a general judgment against all the property of Robinson, and a special lien on the realty in question. On October 9, 1935, after Robertson and Keener, to whom the security deed was given by Robinson, made a quitclaim deed to Robinson for the purpose of levy and sale, this execution was levied on the realty. On October 25, 1935, Edwin Bleckley filed a claim to said land. When he later died his widow was appointed administratrix of his estate, and by agreement she was made a party to pursue the claim filed by her husband. By amendment she alleged, that the security deed from Robinson was given to settle a criminal prosecution, Robinson at the time being under arrest on a warrant sworn out against him by Robertson, and that the same was settled, the consideration for said settlement being a note for $216 given by Robinson to Robertson, secured by the deed, and therefore that the same was null and void: the amendment containing prayers appropriate to such allegations. On the trial of the claim case L. T. Mitchell was sworn for the claimant, and testified: "About October 24th, 1932, I was a lawful constable of Rabun County. I served a warrant on R. P. Robinson about three or four years ago. That is the time R. P. Robinson gave a mortgage and note for $216 to B. C. Robertson, and mortgaged over this house and lot [meaning the house and lot described in the claim]. About the time I served this warrant on R. P. Robinson he and his partner had made a deal with B. C. Robertson about some pinless clothesline, and B. C. Robertson put up $200 in cold cash. In the dealings B. C. Robertson got out a warrant for R. P. Robinson for cheating and swindling, and in the wind-up they settled, I think, for $216 for this mortgage and note, and I let the warrant go. They did settle the warrant. That was B. C. Robertson's proposition. When they gave this note and mortgage Mr. B. C. Robertson dropped it."

At the direction of the court a jury returned a verdict in favor of the plaintiff in fi. fa., Robertson, and the judge entered a judgment accordingly. Mrs. Bleckley, the claimant, moved for a new trial. The court overruled the motion, and she excepted. This is a claim case. Such title as the defendant in fi. fa. had originated in Bleckley, the claimant. The deed which Bleckley made him was canceled by a decree of the court, but the suit in which the decree of cancellation was entered was not filed until after the defendant in fi. fa. had conveyed the property to Robertson as security. So long as the legal title was in Robinson he could convey the same to an innocent purchaser, who would be secure as against any claim of Bleckley, although Bleckley's deed to Robinson was canceled in a suit filed later. Bleckley's deed to Robinson having been canceled, it left no title in Robinson; but the cancellation could not affect the intervening rights of an innocent purchaser from Robinson. To all the rest of the world the decree effaced whatever semblance of title went into Robinson. In order to prevail, Robertson must have been an innocent purchaser in the transaction with Robinson. Compare Chisolm v. Chittenden,45 Ga. 213 (7), 214; Dinkler v. Potts, 90 Ga. 103 (15 S.E. 690); Mashburn v. Dannenberg Co., 117 Ga. 567 (5) (44 S.E. 97); Harris v. Evans, 134 Ga. 161 (3) (67 S.E. 880);Long v. Gilbert. 133 Ga. 691 (66 S.E. 894); Mize v. Bank of Whigham, 138 Ga. 499, 503 (75 S.E. 629). The judge directed a verdict in favor of the plaintiff in fi. fa. If the evidence disclosed that Robertson was not an innocent purchaser, or if the proofs were such that the jury might have so found, the exception to the refusal to grant a new trial must be sustained. Robertson's conveyance from Robinson was a security deed. The testimony of Mitchell is set forth above. The proof was sufficient to justify the jury in finding that the sole consideration for the deed was a settlement of a criminal prosecution. Such a settlement is both illegal and immoral, and contrary to public policy. Jones v. Dannenberg Co., 112 Ga. 426,428 (37 S.E. 729, 52 L.R.A. 271). A settlement of that kind comprising the consideration flowing from the grantee to the grantor prevents the former from being a purchaser in good faith. To be a purchaser at all, one must part with a consideration which the law recognizes. One which the law does not tolerate will not suffice. In Deen v. Williams, 128 Ga. 265 (57 S.E. 427), it was ruled, that a contract to suppress a criminal prosecution, for a consideration personal to the prosecutor, is immoral and contrary to public policy; that where a deed to land is executed to the prosecutor for the purpose only of suppressing a criminal prosecution, the prosecutor, being himself at fault, can not, on the strength of such a deed alone, invoke the aid of an equitable estoppel against another, not a party to the deed, and in whom the legal title was vested at the time of the execution of the deed, in order to prevent such true owner from asserting his title. In the opinion it was said: "The defendant being a party to the agreement to suppress the criminal prosecution, which, for the reasons already indicated, is immoral and contrary to public policy, it can not be said that he came into court with clean hands." Continental Fertilizer Co. v.Madden, 140 Ga. 39 (78 S.E. 460), was a money-rule case. One of the claimants was a mortgagee whose mortgage was given in settlement of a criminal prosecution. The judge on that ground did not allow him to participate in the distribution of the fund. This court affirmed the judgment for the same reason. If it be sought to distinguish that case from this one, because in a rule to distribute money the court is a court of equity, or at least acts on equitable principles (Coleman v. Slade, 75 Ga. 61 (15), 63; Cofer v. Benson, 92 Ga. 793, 795 (19 S.E. 56), the reply is that there is no difference in this respect between a money rule case and a claim case. Myers v. Warrenfells, 153 Ga. 648,653-654 (113 S.E. 180). In addition it may be observed that the claimant in the instant case filed an equitable amendment setting out the specific contentions here dealt with, with an appropriate prayer in connection therewith. It is by no means certain, however, that the claimant in order to make this attack needed anything more than his claim affidavit. Compare Wright v. McCord, 113 Ga. 881 (39 S.E. 510); Askew v. Amos,147 Ga. 613 (95 S.E. 5); Harris v. Anderson, 149 Ga. 168 (99 S.E. 530); Simmons v. Realty Investment Co., 160 Ga. 99 (127 S.E. 279).

Neither the rule which forbids a claimant from going beyond the judgment for the purpose of showing that it ought not to have been rendered (Ansley Co. v. O'Byrne, 120 Ga. 618, 620,48 S.E. 228), nor the doctrine that equity will not ordinarily grant relief where the contract has been executed (Ruis v.Branch, 138 Ga. 150, 74 S.E. 1081), is applicable here. The instant case presents a contest between a claimant who exhibits a title which should prevail, unless his adversary can claim the advantageous position of an innocent purchaser. The claimant had the right to show that such a position was untenable because the consideration by which his deed was obtained was such as the law condemns as illegal, immoral, and contrary to public policy. In such a situation it has often been ruled that courts may interfere even where the contracting parties themselves are in pari delicto. See the text and the cases cited in the notes in 3 Pomeroy's Equity Jurisprudence (5th ed.), § 941.

The distinguished successor to the able trial judge who directed the verdict should have granted a new trial.

Judgment reversed. All the Justices concur.