Alexander v. Chipstead , 1922 Ga. LEXIS 295 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1, 2. We have been asked to review and reverse the cases which bear upon the question as to the proper method of assigning error upon exceptions pendente lite; and leave was granted to counsel for plaintiff in error to have these cases reviewed. What is the proper practice in this matter? Must the assignment of error be 05. the exceptions pendente lite, or to the rulings excepted to therein? At any stage of the cause, either party may file his exception to any decision, sentence, or decree of the court; and if the same is certified and allowed, it shall be entered of record in the cause; and should the case at its final determination be carried by writ of error to tins court by either party, error may be assigned upon such bill of exceptions. Civil Code, § 6138. Does the language, “ error may be assigned upon such bill of exceptions,” mean that the appellant must assign error upon exceptions, or does it mean that an assignment of error on the rulings embraced in such exceptions can be made ? . Can a party do either one or the other?

We do not find that this court has ever expressly ruled that an assignment of error on the rulings embraced in a bill of exceptions pendente lite is not good; and that the only way of assigning error on exceptions pendente lite is to assign error on the exceptions pendente lite and not on such ruling. This court, in many cases, has held that it will not decide on a bill of exceptions entered of record pendente lite unless error be assigned thereon, and both parties have opportunity to be heard in respect to such error. Howell v. Howell, 59 Ga. 145 (7); Runnals v. Aycock, 78 Ga. 553 (3 S. E. 657); Nicholls v. Popwell, 80 Ga. 604 (6 S. E. 21); Stover v. Adams, 114 Ga. 171 (39 S. E. 864); A., & B. R. Co. v. Penny, 119 Ga. 749 (46 S. E. 665); Sumner v. Sumner, 121 Ga. 1 (48 S. E. 727); Shaw v. Jones, 133 Ga. 446 (66 S. E. 240); Smiley v. Smiley, 144 Ga. 546 (87 S, E. 668); Cotton States Electric Co. v. Clayton, 147 Ga. 228 (93 S. E. 204); U. S. Fidelity & Guaranty Co. v. First National Bank, 149 Ga. 132 (99 S. E. 529); Brewer v. New Eng. Mortg. Security Co., 149 Ga. 497 (101 S. E. 116).

Where exceptions pendente lite are duly certified and entered of record, when the case is brought up after final judgment error may be assigned thereupon, upon motion in this court, though no mention be made of them in the main bill of exceptions. South Carolina R. Co. v. Nix, 68 Ga. 572; Hardee v. Griner, 80 Ga. 559 (7 S. E. 102); Hall County v. Gilmer, 123 Ga. 173 (51 S. E. 307).

In none of these cases is the exact point under discussion passed upon. In all of them reference is made to the assignments of error on exceptions pendente lite; but none of them undertakes to pqint out the method in which this is done. In Sumner v. Sumner, supra, this court said, “ Sumner’s bill ■ of exceptions contains merely a recital that such an order was passed, and that exceptions pendente lite thereto were filed, but does not assign error either on the order or the exceptions pendente lite;” and thus assumes that an assignment of error could be made upon the order, the granting of which is complained of in the exceptions pendente lite. The record in the case of South Carolina Railroad Co. v. Nix, supra, shows that the assignment of error was on the decision overruling the demurrer to the petition in said case, and not upon the exceptions pendente lite complaining of the judgment overruling the demurrer. This court approved this assignment of error, and passed upon the question raised in the exceptions pendente lite. In our opinion an assignment of error on exceptions pendente lite, or. an assignment of error on the rulings therein complained of, is sufficient.

By the act of August 15, 1921 (G-a. Laws 1921, p. 233), this question can not arise again in a case similar to this one. This act declares that “when the final bill of exceptions shows that exceptions pendente lite were properly filed in the trial court, and where the contents of such exceptions pendente lite are recited in the bill of exceptions, or a copy thereof appears in the transcript of record, an assignment of error in the final bill of exceptions, either upon the exceptions pendente lite or upon the rulings therein excepted to, shall be held to be sufficient.” This being a remedial act, not affecting vested rights (Ross v. Lettice, 134 Ga. 866, 68 S. E. 734, 137 Am. St. R. 281), we hold that the same is applicable to bills of exception sued out and certified before its passage. By the terms of this act it is confined to cases where assignments of error are made in the final bill of exceptions; and will probably not cover cases where no mention of the exceptions pendente lite is made in the final bill of exceptions, and where no assignments of error on such exceptions are made therein, but where separate assignments of error are made in this court.. For this reason we have dealt with the question of the proper practice in this matter in both classes of cases. We do not find that any decisions of this court, when .properly construed, hold a contrary doctrine.

3. The plaintiff offered an amendment to her petition, in which she set up that the defendant proposed to her intestate, that, if he would give him additional security for his" indebtedness, the defendant would extend his interest note due November 17, 1916, until November 17, 1917; that in pursuance of this offer of the defendant her intestate executed and delivered to the defendant a bill of sale of certain personal property, upon the express promise and agreement of the defendant that said bill of sale was given and taken for that purpose; and that by reason of such agreement, and the acceptance by the defendant of said bill of sale, none of the indebtedness of her intestate to the defendant was due at the time he exercised the power of sale embraced in the security deed given by her intestate to said defendant upon the Lime Branch plantation, for which reason he could not exercise such power of sale. The defendant objected to the allowance of this amendment, on the grounds that it was presented too late, and that it set forth no reason in law or equity why the sale of the land described in the petition should be set aside. The court sustained the objection that the amendment was not presented in due time, and disallowed the same. In his order disallowing the amendment the judge certifies that the demurrers were set down to be heard at the time and place fixed by an order previously passed in term time. At this time and place, and after argument by both sides on the demurrers, the court inquired of counsel for the plaintiff if he had anything further to offer, and counsel responded that he had not. Thereupon the court pronounced his judgment sustaining the demurrer to so much of the petition as challenged the legality of the sale, of the Lime Branch place, and directed an order to be prepared accordingly. Counsel for the plaintiff then stated that he had an amendment to offer, but the same was not prepared; and the court stated that said amendment would not be considered, because judgment had been pronounced. When the order sustaining the demurrer, as above stated, was presented for the signature of the judge, counsel for plaintiff offered this amendment, which the court,declined to allow, for the reason above stated.

Did this amendment come too late? Our statute upon the subject of amendments is very broad. It provides: “ All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equitjq may at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by.” Civil Code, § 5681. A motion to amend is in time if made before any order or judgment sustaining the demurrer to a petition and dismissing the same has been entered, although the court has orally announced that the demurrer was sustained. Lytle v. DeVaughn, 81 Ga. 226 (2) (7 S. E. 281); Freeman v. Brown, 115 Ga. 23 (41 S. E. 385); Swilley v. Hooker, 126 Ga. 353 (55 S. E. 31). What the judge orally declares is no judgment until it has been put in writing and entered as such. Freeman v. Brown, supra. So we are of the opinion that the court erred in rejecting this amendment on the ground that it was presented too late. It was presented in time. It was offered before the judgment sustaining the demurrers had been entered by the judge.

4. It was further urged that this amendment did not set up any good reason in law or in equity why the. sale complained of should be set aside. In this we can not agree with counsel for the defendant. The latter undertook to declare the principal of the debt due by reason of the fact that the interest note of his debtor which fell due November 17, 1916, had not been paid, which right he was authorized to assert under his security deed, if said note had not been paid when due. Clearly, if the debtor had extended the payment of this note, by agreement for a valuable consideration, before its maturity, for a period of one year, then the same was not due when the debtor undertook to exercise the power of sale in his security deed; and a sale under such circumstances would be null and'void. Scott v. Liddell, 98 Ga. 24 (25 S. E. 935). This ground of attack on the sale, by the vendee in the security deed under the power of sale therein conferred upon him, was good. If he had extended the payment of the first interest note for the period of one year, then he could not in law, equity, or good conscience undertake to declare the principal of his debt due by default on the part of his debtor in the payment of this interest note.

But it is further urged by counsel for the defendant that this amendment should not be allowed, for the reason that the plaintiff attacked this bill of sale on the ground that her intestate was mentally incapable of making it at the time he signed it; and that to now assert any rights thereunder in behalf of her intestate is inconsistent with the position that this bill of sale was void because of lack of mental capacity on the part of the maker, the plaintiff not having stricken from her petition the allegations upon the subject of the mental incapacity of her intestate. This contention of counsel is based upon the doctrine that a plaintiff can not concurrently pursue inconsistent remedies in the same action. Couch v. Crane, 142 Ga. 22 (82 S. E. 459). Suffice it to say that this ground of objection was not urged by the defendant to the allowance of this amendment. In the second place, the plaintiff was not required, by an appropriate demurrer or proper objection, to elect upon which position she would rely in this case. Furthermore, she was not pursuing inconsistent remedies in the same action. In the first place she undertook to attack the validity of the bill of sale on the ground of the mental incapacity of the maker. She then in effect asserted that the bill of sale, if valid, was made upon the promise of the defendant to extend the time of the payment of the interest note due November 17, 1916, and that on account of such agreement he could not undertake to declare the principal of his debt due and to exercise the power of sale to enforce its payment. The plaintiff was simply undertaking to obtain alternative relief; and we do not think that there was such inconsistency in her position as would render this amendment improper.

5. When the grantor in a security deed dies after the execution thereof, and the grantee undertakes to exercise the power of sale therein contained, the property should be advertised and sold as the property of the estate of the grantor. Greenfield v. Stoul, 122 Ga. 303 (50 S. E. 111). This case was referred to approvingly in the case of Baggett v. Edwards, 126 Ga. 463, 466 (55 S. E. 250), but not expressly on this point. It is insisted that the contrary ruling was made in the case of Sorrell v. British American Mortgage Co., 148 Ga. 513 (97 S. E. 441). In the last case, an administrator undertook to set aside a'sale of lands, made under a power of sale contained in a security deed of the plaintiff’s intestate, on the grounds, among others, that the property was advertised for sale and sold as the property of the grantor, when the latter was dead. This court held that under the state of the record it was impossible to determine the scope of the power of sale with such certainty as to pass upon the validity of the sale as a matter of law; and did not make any decision upon the question involved in this case. In Greenfield v. Stout, supra, it was distinctly ruled, that, when the grantor in a security deed was dead, the property should be sold as the property of his estate. It is insisted by counsel for the defendant that- this ruling was obiter. This position does not seem to be well taken. This court directly ruled that “ as Weston, the grantor in the deed to Pullen, is dead, the land can not be sold as his property, but should be sold as the property of his estate,” it appearing that the land was sold as the grantor’s property. This was one of the grounds on which the sale was held to be void. We are not now prepared to hold that -a sale, under such circumstances, to an innocent purchaser for value, would be void on account of such irregularity ; but as between the parties to such power of sale, on the authority of Greenfield v. Stout, we hold that such sale would be void, it being the law until reversed.

6. The court sustained all the demurrers, both general and special, to the original petition, as amended, so far as it sought to set aside and declare illegal and void the advertisement, sale, and conveyance to the defendant of the tract of land embraced in the security deed from Gay to him. ^ This ruling raises the question whether the petition, as amended, set forth a cause of action which, if proved, would entitle the plaintiff to have the sale of this place declared void and set aside. If we are right in the contention, above set forth, that under the power of sale in this security deed this land should have been advertised for sale and sold as the property of the estate of Gay when the grantee undertook to exercise this power after the death of the grantor, and that a sale not so conducted was irregular and void when the property was bought in by the vendee, and where no rights of innocent persons would be affected, then clearly the petition set forth a cause of action. Whether independently of this fact the petition set forth a good cause of action, so far as it relates to this tract of land, it is unnecessary now to decide. As we have held that the court erred in rejecting the amendment offered by the plaintiff, wherein she alleges that the payment of' the interest note .which fell due on November 17, 1916, had been extended for one year by the debtor giving additional security, by reason of which fact there was no default- in the payment of any of the interest by Gay to the defendant, and that the power of sale could not be exercised because there was no default, said amendment will become a part of the petition; and the petition with such amendment will clearly set forth a good cause of action.

7. This brings us to the consideration of the grounds of special' demurrer. The court did not err in sustaining any of the grounds of special demurrer, except as will now be indicated. The court erred in sustaining the special demurrer to paragraph 12 of the petition, which alleged that the plaintiff, on December 1, 1916, had offered the defendant the sum due on the interest note which fell due on November 17, 1916. The grounds of special demurrer are, (1) that it is not alleged how plaintiff offered the defendant said sum; (2) that the facts do not show that this offer constituted a legal tender; and (3) the note had matured, and the defendant’s contractual right to declare the whole debt due had accrued. As the defendant declined to accept payment of this interest note, it was not incumbent upon the. plaintiff to show a strict legal tender. The fact that the defendant’s right to declare the whole debt due had accrued at the time of this offer does not make this paragraph demurrable on that ground,, the defendant not having exercised this right, as was alleged in paragraph xii-c of the amendment to the petition. We think that it was competent for the plaintiff, who was an heir-at-law of her husband and thus interested in his estate, to allege and prove that the defendant had expressly assured her, at the time she offered to pay him this interest note, that he had not exercised his right and that he would not exercise such right to declare the whole indebtedness due; and that she had offered to pay him the amount of this interest note, with the interest accrued thereon from its date, before the defendant had exercised his option to declare the whole debt due. He could certainly waive this right; and if before he had exercised. this harsh right the plaintiff, who was interested in the estate of her husband, made this offer, then -he could not afterwards exercise the right to declare the whole debt due. Certainly he could not do so when he had given the plaintiff his assurance that he would not do so. For the same reason the court erred in sustaining the demurrer to paragraphs xn-d and XL-a of the plaintiff’s amendment to her petition.

8. The grounds of the motion for new trial, with the exception of the ninth ground, amount simply to allegations that the verdiet is contrary to the evidence and to the law. The ninth ground is without merit. We hold that the court erred in directing a verdict for the defendant, under the principles of law declared in this opinion. Judgment reversed.

All the Justices concur.