Peyton v. McMillan , 145 Ga. 179 ( 1916 )

Evans, P. J.

(After stating the foregoing facts.)

1. One ground of demurrer was that if the plaintiffs had any right of action against the defendants, it was not joint but several, and there was a misjoinder of parties. The auditor overruled this ground. No exception is taken to the failure to join the other two sureties. Manifestly there is no merit in this ground of the demurrer. The defendants are transferees of the fL.fa., which is alleged to have been paid pursuant to an agreement in which both-participated.

2. The auditor also overruled the general demurrer to the petition. Briefly stated, the plaintiffs’ case is .this: They borrowed money from a bank upon a note on which the defendants were accommodation indorsers or sureties, and further secured the note by a mortgage on certain property. The bank sued on the note to judgment, and also . foreclosed its mortgage. Executions upon these judgments were levied upon the property embraced in the mortgage. The plaintiffs and the sureties agreed that if the plaintiffs would execute to the sureties a deed to the land covered by the mortgage, and other lands, the sureties would pay off the judgment of the bank, sell the property, and from the proceeds reimburse themselves in the amount paid to discharge the note to the bank, as well as compensate themselves for their time and expense in reducing the property to cash, and would account for the excess. This agreement was executed by the plaintiffs’ making the deeds therein contracted for. The plaintiffs alleged that the sureties sold the property so conveyed to them, and had not accounted for the proceeds; and that on a proper accounting it would appear that the net proceeds of the property conveyed to the sureties and sold by them was more than sufficient to pay the debt for which they were.liable. The bare statement of the case shows that it was one for equitable accounting.

3. One of the exceptions is that it did not appear from the auditor’s report that he had been sworn. This is not a ground for an exception of fact to the auditor’s report. The proper remedy in such case is a motion in due time to recommit the case to the auditor. Harrison v. Harrison, 115 Ga. 999 (42 S. E. 382).

4. Exception was taken to the auditor’s allowing in evidence certain correspondence between one of the defendants and the plaintiffs, 'over objection that the evidence was insufficient to show that the other defendant authorized or ratified the correspondence. This correspondence contained the contract between the sureties and their principal, with reference to taking over the property of the plaintiffs and disposing of it for the benefit of all concerned. The evidence authorized an inference that the defendant in whose name the correspondence was conducted was acting in behalf of himself and the other sureties. Furthermore it appeared that the sureties disposed of the property which was conveyed to them, and which was not included in the mortgage to the bank. There was no error in receivihg this evidence. One letter, written a year before the transaction, was clearly irrelevant, and was properly excluded.

5. There was evidence tending to show that the sureties, after their contract with the plaintiffs, adopted a policy to allow the property levied upon to proceed to sale, and such of it as was not bringing its real value would be bid in by the defendants. The defendants purchased some of the land at the sale, and sold that land, together with other land which was embraced in the plaintiffs’ deed to them, and not included in the mortgage. The various deeds evidencing these transactions were allowed in evidence. The defendants filed exceptions to their admission. These exceptions are without merit, as these deeds illustrated the transaction and tended to show the disposition of the property, and the amounts received by the defendants.

6. The auditor found that the plaintiffs were not bound by the amounts received at sheriff’s sale from property bid off by the sureties, as title to the same had already been conveyed to the defendants, under an agreement that they would dispose of it for the benefit of the plaintiffs; and that the same was purchased at sheriff’s sale by the defendants, in execution of their contract with the plaintiffs. It is contended that as the property was sold under the fi. fa., the prices brought at the sale were conclusive and discharged the contract. If the plaintiffs’ contention be true (and there was .ample evidence to support such contention), there was no merit in the assignment,

7. Several of the exceptions classified as exceptions of law were really exceptions of fact, and the evidence was ample to support the auditor’s findings so excepted to. The findings of fact, to which, exceptions were taken, were also sustained by the evidence. This being an equity cause, and there being evidence to support the findings, there was no error in overruling the exceptions, and in refusing to submit any issue made by such exceptions to the jury. Civil Code (1910), § 5141; Murray v. Hawkins, 144 Ga. 613 (87 S. E. 1068). We find no merit in any of the exceptions to the report of the auditor, which was clear and perspicuous, and was fully authorized by the evidence.

Judgment affirmed.

All the Justices concur.