Roberts v. McBrayer

1. The general assignment of error that the motion for new trial "should have been granted on each and every ground," taken with the general and special grounds of the motion, precludes a dismissal of the writ of error on the ground that the bill of exceptions does not contain any sufficient assignment of error. There are also proper exceptions pendente lite to antecedent rulings on the pleadings. However, the exceptions to the final decrees as erroneous in themselves can not be considered, since such exceptions were not timely taken.

2. The court did not err in overruling demurrers by the plaintiffs to the defendant's cross-action, on the grounds that it made improper parties, and failed to show any right to the relief prayed. Nor did the court err in striking the pleas to the jurisdiction, filed by two of the plaintiffs in error, setting up their residence in another county.

3. Under the evidence, the court did not err in directing a verdict and a finding on certain issues against particular plaintiffs in error. On other issues left to the jury, the verdicts were authorized. The charges to the jury, complained of, show no ground for reversal; the relief granted to the defendant on his cross-action against the plaintiff administrator, as expressly limited in the final decree, did not interfere with proper administration; and the court did not err, on any ground, in refusing a new trial.

No. 14120. SEPTEMBER 22, 1942. In June, 1941, W. K. (Kendall) Roberts filed a petition against his uncle, H. H. Roberts, to cancel a written contract and a note executed by the plaintiff to the defendant, which purported to settle the affairs of a partnership between the defendant and S. T. Roberts, his brother, just deceased. The plaintiff is the son and only heir-at-law of the decedent. According to the contract, executed in February, 1938, the total assets of the partnership mercantile business amounted to $4050.87; its debts amounted to $1911.07, leaving as the amount of assets above liabilities $2139.80; the decedent had drawn out of the business $3322.25, including funeral expenses and a doctor's bill (which together with the debts the defendant brother assumed and agreed to pay at once), in excess of the amount drawn out by the brother; and the plaintiff son of the decedent, his sole heir, agreed to pay the brother $641.22, evidenced by a promissory note, in settlement of their affairs with reference to the partnership.

The grounds on which the plaintiff son sought to cancel the contract were as follows: lack of business experience by the son; his recent attainment of the age of twenty-one; an absence of consideration for the contract; and a mutual mistake by both parties that no administration was necessary.

On the same day, and in the same court, B. R. Durden, as administrator of the estate of the deceased partner, brought an action against the decedent's brother, defendant in the other suit; alleging that the partnership owned $2139.80 in assets above liabilities, which was the same amount as that shown in the contract between the brother and the son of the decedent, and that the defendant had taken possession of all the assets, and refused to divide them in kind with the plaintiff administrator; and prayed for recovery of $1069.90, as one half of the net assets, without regard to any difference between the amounts drawn out of the business by the respective partners.

In the first mentioned (equitable) suit, brought by the decedent's son to cancel the contract, the defendant included in his answer matter in the nature of a cross-action. The essential averments in this pleading were as follows: that the administrator's suit was brought for the benefit of the decedent's mother-in-law, to obtain payment of a note executed to her by the decedent; that she had consented to the contract between the decedent's son and brother as to the partnership; that the son had paid his note to the brother, as agreed in the contract, by subsequently deeding to the brother a tract of land, and the mother-in-law had given her written consent to this deed; that with her consent or knowledge the son, as sole heir, had also sold the father's equity in a described tract of land, which had been covered with a Federal mortgage, and had sold other land and personalty of the estate; and that by her knowledge and implied consent to these transactions the mother-in-law was estopped from attacking them. The prayers of this cross-action were: that the two suits, one by the son and the other by the administrator, against the defendant brother, be consolidated; that the mother-in-law and the purchaser be made parties to the litigation; that the administrator and the mother-in-law be enjoined from proceeding against the land that had been deeded by the son to the brother with the mother-in-law's consent, and from attacking other transactions to which she had consented; that title to the partnership assets be decreed in the defendant brother; that the entire transactions between the parties be inquired into, and "complete equity done therein;" and that other necessary relief be granted.

The purchaser of the equity from the son filed an answer to the cross-action, which in effect admitted its averments; alleged knowledge by the decedent's mother-in-law as to the transaction had with this purchaser by the son, and her estoppel thereby; alleged payment by this purchaser of the security deed held by the Federal Land Bank as executed by the decedent; and prayed for a decree of title in the purchaser, and for his subrogation to the rights of the Federal Land Bank. There is no exception to the allowance of this answer of the purchaser; and no attack was made thereon.

The court allowed to be consolidated the two suits against the decedent's brother. There is no exception to the order of consolidation. The administrator of the decedent's estate and the mother-in-law of the decedent demurred to the brother's cross-action, on the grounds, that the purchaser of the equity from the son was not a proper party; that there was no common interest, but a misjoinder of parties; that the partnership agreement showed that it was a nudum pactum, and executed under a mistake of fact; that the mother-in-law's consent thereto was without consideration to her; and that the cross-action was an interference with the duties of administration. In answers to the cross-action the administrator and the mother-in-law also pleaded that the court was without jurisdiction, on the ground that they were both residents of another county; that no substantial relief was claimed as to the purchaser of the equity; and that he alone resided in the county where the cross-action was brought. The court overruled the demurrers to the cross-action, and sustained the brother's demurrers to the pleas to the jurisdiction.

In the trial the court directed a verdict in favor of the purchaser of decedent's equity, on his answer to the cross-action. The court also ruled, at the close of the evidence for the decedent's son, that there was not sufficient evidence to cancel the contract between him and the decedent's brother, and so charged the jury. Other issues raised by the brother's cross-action, except the stricken averments in the pleas to the jurisdiction, were left to the jury. Separate verdicts by different juries were rendered, one in favor of the purchaser of the equity, as directed; and the other, in favor of the defendant brother on his cross-action. Final decrees were rendered, granting to the purchaser the relief prayed for in his answer to the cross-action, and decreeing that good title had passed to him under the deed form the son, and that he was subrogated to the rights of the Federal Land Bank, the mortgagee, in the mortgage executed by the decedent; and granting to the brother, under his cross-action, an injunction against the administrator's sale of the land that the son, with the mother-in-law's written consent, had deeded to the brother as a settlement of the balance due by the son under the contract with the brother and of the note evidencing this indebtedness; and also granting an injunction against the mother-in-law's enforcement of her claim against the decedent's estate out of "any property of [the decedent] that she knew was being sold by [the son] that she consented to be sold," and in particular the land just mentioned, deeded by the son to the brother of the decedent with her written consent; and enjoining the administrator and the mother-in-law from proceeding against the partnership assets; and further decreeing that the brother had good title to such partnership assets in his hands, under the contract.

The injunction against the administrator and the decreeing of title in the brother were also expressly conditioned on "the absence of valid claims being filed with the said administrator by other parties than those to this equitable action." It was also provided that the administrator be not enjoined from proceeding with the administration as to other matters and properties subject to his legal demands.

The motion for new trial on both verdicts, filed by the administrator, the son, and the mother-in-law, contains both general and special grounds. These exceptions are indicated and dealt with in the opinion. The essential evidence at the trial was as follows:

W. K. Roberts, son of the decedent, testified in effect, that he was twenty-two years old when he signed the contract in question; that he was present when the inventory and statement as to the partnership assets were made, saw the prices put down and the list of accounts, and thought they were all right; saw the data as to his father's withdrawals from the partnership assets, some in the father's handwriting, "did not think any of them were wrong," and did "not think any of them are wrong now;" that he had "told them" an administration of his father's estate "was not necessary;" and that he had "read . . over" the agreement between himself and the brother "before it was signed," and "didn't anybody force me to sign it." As to knowledge or consent of the decedent's mother-in-law to the contract, he testified: "Before the agreement was signed, [decedent's brother] and I saw [her] . . she showed [her note] to him. . We showed the agreement to her, and she read it over. After she read it over, she said she didn't understand anything much about it, it looked like it was all right to her." He also testified as to his signing the note to the brother for the $641.22 balance due and interest; and that he had received $800 from the sale of the decedent's equity in land, the purchaser of which was made a party to the case, and $400 for timber, and other amounts from sales of personalty, making a total of $2175.

Mrs. Genie Jackson, mother-in-law of the decedent, testified: that she held a note for $996 against the estate of her son-in-law; that she never saw the contract when the decedent's brother "came to the house to talk about it," but found it about three or four weeks afterwards, read it, and never did "anything when I found it, because [the son] had signed it," although she "did not like it" and "it did not meet with [her] approval." She admitted signing a statement that she had no claim against the land, which the son as sole heir-at-law deeded to the brother in settlement of his note and balance due under the contract, because the son had no money to pay it, and "to get [him] out of debt." As to the son's sales and moneys received from the estate she further testified, that she had never received any money from the son or from the estate; that she did not know he had received money from the purchaser of decedent's equity until "about a month . . it might have been longer" after that sale; that she did not "try to get any of that money to apply on that note, because mine went in the store, and I thought mine should have come out of the store;" and that she knew the son had received moneys from other sales, but she had not called on him to pay her note.

H. H. Roberts, the brother of the decedent, testified: that before the contract between him and the son was signed he explained all the figures and details to Mrs. Jackson, the mother-in-law; that she wanted her note paid, but told him to "go ahead and trade . . there will be plenty;" that the son then said "he would pay it out of what my brother had, out of the estate, and [she] agreed to accept that . . and we signed the contract" afterwards; that he then opened the store that the partnership had operated, and started business again; that the son worked there with him from February to August; that the son paid his note and debt under the contract by making a deed to a tract of land which the witness had since sold; and that when it was sold, the mother-in-law had signed a paper (which was in evidence), reciting, "I do not hold any claim against [this] property, bought from [the son] by [the witness,]" but the witness did not pay her anything to sign this paper.

There was no testimony attacking the correctness of the amounts or statements contained in the contract between the brother and the son as to the partnership business. Nor was there testimony as to what, if any, assets of the estate remained, which might be available to pay any unpaid debts or expenses of administration, in addition to the properties involved in this litigation and the properties previously sold by the son as sole heir of the decedent.

The verdicts were rendered on October 7, 1941; final decrees in favor of the purchaser of the equity and in favor of the defendant on his cross-action were entered on October 10, 1941, on which day the October term of the superior court adjourned; and the motion for new trial was denied on December 20, 1941. The present bill of exceptions was tendered on January 17, 1942.

The bill of exceptions brought by the son and the mother-in-law of the decedent and the administrator assigns error on the refusal of a new trial on general and special grounds, with an assignment of error as stated in the opinion. The record shows exceptions pendente lite, duly allowed, to the overruling of the demurrers of plaintiffs in error to defendant's cross-action, and to the striking of the pleas to the jurisdiction of two of the plaintiffs in error; and a general assignment of error as to the controlling effect of these rulings on the pleadings. Exceptions are taken to the final decrees as erroneous in themselves, for reasons assigned; but although the decrees were rendered on October 10, 1941, and the October term of the trial court adjourned on that day, the record does not show any exceptions pendente lite to the decrees as erroneous in themselves, nor any exceptions taken to such decrees prior to the tender on January 17, 1942, of the present bill of exceptions. 1. The motion to dismiss the bill of exceptions as containing no sufficient assignment of error is denied. "An exception to the effect that the court erred in overruling a motion for a new trial on the grounds therein stated is equivalent to incorporating each ground of the motion . . in the bill of exceptions and assigning error on it separately;" and this is sufficient to avoid a dismissal of the bill of exceptions, if any ground of the motion for new trial is sufficient. Binion v. Ga. So. Fla. Ry. Co., 118 Ga. 282,285 (45 S.E. 276); Gray v. Phillips, 88 Ga. 199 (5) (14 S.E. 205); Rigell v. Sirmans, 123 Ga. 455 (51 S.E. 381);Huxford v. Southern Pine Co., 124 Ga. 181 (52 S.E. 439). The motion for new trial contains the general and special grounds, and therefore the general exception that the motion "should have been granted on each and every ground" suffices to prevent a dismissal of the writ of error, irrespective of the sufficiency of other assignments of error.

(a) On a previous bill of exceptions in this case, which was taken from "final decrees" while a motion for new trial remained undetermined, this court dismissed the writ of error as premature, but granted leave to treat the copy of that bill of exceptions of file in the trial court as exceptions pendente lite. Darden v. Roberts, 192 Ga. 637, 639 (19 S.E.2d 270). The present bill of exceptions from the final judgment refusing a new trial, being taken before the decision of this court granting leave to treat the copy of the former bill of exceptions as exceptions pendente lite, necessarily makes no reference to that decision and contains no such exceptions pendente lite. However, the present bill of exceptions does show other exceptions pendente lite duly taken to antecedent rulings of the court on the pleadings, which rulings controlled the final judgment; and therefore such questions as to the pleadings are now properly before this court for determination.

(b) The bill of exceptions now also assigns error on the final decrees as erroneous in themselves, upon grounds stated. Such questions can not be considered, since the present bill of exceptions was not tendered within a sufficient time after the decrees to constitute either good direct exceptions or good exceptions pendente lite; and since this bill of exceptions, tendered as stated before the previous decision of this court, makes no reference to the former bill of exceptions to the final decrees, as exceptions pendente lite.

2. As to the grounds of the demurrers to the brother's cross-action, that there was a misjoinder of parties and no common interest between them with respect to the administrator, he was already a party plaintiff in his suit to recover partnership assets from the brother; and the son of the decedent was likewise a party plaintiff in his equitable suit to cancel the contract with regard to the partnership. Under the averments of the cross-action, the mother-in-law of the decedent also was a necessary party to the relief sought therein; and each of the parties named had a common interest in the matters in controversy with the brother. There is no exception to the ruling consolidating the two suits against the brother, taken in the equity suit brought by one of the plaintiffs in error himself. In granting complete relief to a defendant under his cross-action, equity can make necessary parties. Code, §§ 81-106; 37-1005. With respect to any misjoinder by making the purchaser of the decedent's equity in land from the son a party to the cross-action, the record shows no objection to or attack upon his answer to the cross-action, in which he in effect admitted the averments of the cross-action and sought for himself substantial relief. Nor does the record show any exception to the direction of the verdict and the rendition of the decree in his favor, granting the relief prayed for in his answer. Accordingly, there is no merit in the grounds of demurrer to the cross-action, as showing a misjoinder or improper parties. Furthermore, the failure to object or except to the rulings relating to the making of such parties, the consolidating of the two suits, and the granting of relief to the purchaser as a new party, would in any event render harmless to the plaintiff in error the previous adverse ruling on demurrer as to these matters.

(a) Under the averments in the cross-action, taken with the recital in the pleaded contract between the brother and the son of the decedent, that the brother agreed to pay all the partnership debts and the funeral expenses and a doctor's bill of the decedent, there is no merit in the ground of demurrer to the cross-action that the contract showed no consideration as to the son, the sole heir-at-law of the decedent. Nor, under the averments of the cross-action, is there any merit in the remaining grounds of demurrer, that no benefit to the mother-in-law of the decedent or injury to the brother was shown, as a consideration for her consent to the acts of the son or as a basis for estoppel against her.

(b) The court did not err in striking pleas to the jurisdiction, set up in the answers of the administrator and the mother-in-law of the decedent, that they were residents of a county other than that of the suits, since the administrator had already made himself a party by bringing the action against the brother to recover the value of partnership assets; and since the mother-in-law was a necessary party under the allegations of the cross-action; and since the purchaser, as a new party, residing in the county, claimed in his answer and was granted substantial equitable relief; and for the additional reasons stated in the preceding paragraph 2.

3. As to the verdict in favor of the purchaser of the equity in land of the decedent, there is no exception to the direction of such verdict. All of the special grounds in the motion for new trial are confined to alleged errors with respect to the verdict for the brother in his cross-action; and under the general grounds, the verdict for the purchaser being authorized, the court did not err in refusing a new trial as to him.

(a) As to the verdict against the decedent's son, on his prayer for a cancellation of the contract between him and the decedent's brother, the court did not err in directing such verdict on the issue as to the validity of such contract, since the testimony failed to show any absence of consideration, or any fact which could legally constitute fraud or mistake; and furthermore showed without dispute subsequent acts by the son which ratified the contract.

(b) As to the verdict against the administrator with respect to the partnership assets, his petition against the brother, seeking to recover a full half interest of the decedent therein, without deduction for any excess of the amount drawn by the decedent over that drawn by the brother, alleged that the total value of these assets was the same in amount as that agreed upon by the son and the brother in their written contract. There was no evidence to dispute that the amount agreed in the contract as the excess drawn by the decedent over moneys drawn by the brother was correct. The Code provides that "The surviving partner, in case of death, may control the assets of the firm to the exclusion of the legal representatives of a deceased partner, and he shall be primarily liable to the creditors of the firm for their debts;" that, after all debts are paid, the assets may be divided in kind by disinterested appraisers; and that, before such a division, "Title to personal property shall vest in the surviving partners, who have the right to dispose thereof for paying the debts and making distribution." §§ 75-208, 75-209. Accordingly, under the pleading of the administrator, the evidence, and the quoted provisions of the Code, the verdict against the administrator as to the partnership assets was demanded. As to the verdict against the mother-in-law, as alleged sole creditor of the estate, with respect to such assets, the verdict, for the reasons stated as to the administrator, was likewise demanded, although on the issue of estoppel against her as to the partnership assets the conflicting evidence authorized but did not demand a finding against her.

(c) As to the verdict against the mother-in-law with respect to the land deeded by the son to the brother in settlement of the son's liability as fixed in the contract, the verdict was demanded under the undisputed evidence that she consented in writing to this deed. As to the verdict against the administrator with respect to this land, the verdict was also demanded. This is true for the reason that, on the death intestate of an owner of realty, "the title shall vest immediately in his heirs at law, subject to be administered by the legal representative, . . for the payment of debts and the purposes of distribution" (Code, § 113-901); and while "the right to the possession of the whole estate" and "the right to recover possession . . from third persons is solely" in the administrator (§ 113-907), yet, in order to be entitled to such a recovery of land against an heir or a purchaser from the heir, the administrator must show "either that the property . . has been in his possession, and without his consent is . . held by the defendant, or that it is necessary for him to have possession for the purpose of paying the debts or making a proper distribution." § 113-908. There was no evidence that the administrator was ever in possession of this tract, deeded by the son as sole heir to the brother of the decedent, or that its recovery from the brother would be necessary to pay debts or expenses of administration, other than the claim of the mother-in-law, whose rights, as a party to this case, were adversely adjudicated with reference to this tract. Nor was there any evidence that other assets of the estate did not exist, sufficient to complete the administration.

Furthermore, the verdict against the administrator, both as to this tract and as to the partnership assets, and the injunction against his interference with such properties, could not operate to interfere with his rights as administrator in the due administration of the estate, and his duty to protect any creditors other than parties to the case, since the relief granted to the brother in his cross-action was expressly conditioned on "the absence of valid claims being filed with the said administrator" by persons "other than parties to the case," and was made inapplicable to "property that may be subject to [his] legal demands."

(d) Under the preceding rulings as to the direction of verdicts for the purchaser of the equity of the decedent, and for the brother against the son as to the cancellation of the contract relating to the partnership, the court did not err in charging that the contract was valid and binding, and that the jury were not concerned with the purchaser of the equity, since the court had directed a verdict in his favor, which the record shows had been rendered by a jury different from the one rendering the verdict in favor of the brother in his cross-action.

(e) On the issue of estoppel as to the mother-in-law of the decedent, as raised by the pleadings and the evidence, the court did not err in charging, in the language of the Code, § 38-409, that "Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission;" or in charging that, if the jury should "find that she had knowledge of the contract [between the son and the brother] and acquiesced in it at the time it was made, . . then you would not be authorized to find a verdict in her favor."

(f) In the remaining special grounds, exception is taken to an instruction of the jury, that: "If you find, under the evidence in this case, that the partnership had already been would up and left no indebtedness so far as [the named mother-in-law of the decedent] is concerned, then in that event [the person named] acting as administrator would have no claim." Exception is also taken to another instruction that "In a partnership the individual property of each partner . . is subject to the debts of the partnership; that is, provided first the partnership assets are not equal to the amount of the claim." Whether or not the quoted excerpts constituted erroneous, inaccurate, or inappropriate statements of the law applicable to the issues raised by the pleadings and the evidence, as contended in these grounds, and whether either charge was prejudicial to the plaintiffs in error, the exceptions show no ground for a reversal, since they relate to the partnership assets, as to which, under the preceding rulings, the verdict for the brother was demanded.

Judgment affirmed. All the Justices concur.