DocketNumber: 13024.
Citation Numbers: 5 S.E.2d 648, 189 Ga. 234
Judges: Duckworti-I
Filed Date: 10/11/1939
Status: Precedential
Modified Date: 10/19/2024
1. The superior court has inherent power to correct all alterations in its records and office papers, which include all pleadings filed therein. And when, as in the instant case, by order of that court alterations made in the plaintiffs' petition before copies thereof were certified and transmitted to this court are corrected, and the clerk at the direction of that court transmits certified copies of the petition as thus corrected, such corrected petition is the true record; and the copy of the altered record will not be considered by the Supreme Court.
2. The allegations of the amendment being in irreconcilable conflict with allegations of the original petition, and no attempt being made to strike such conflicting allegations from the petition, the amendment was properly disallowed. Also, an amendment to the prayers seeking to engraft a parol trust agreement upon an absolute deed was properly disallowed.
3. Where a purchaser of land from one in possession, who holds a deed thereto which is absolute on its face, has paid the purchase-price and taken possession, parties claiming an equity therein of which the purchaser had no notice are not entitled to have purchaser's deed canceled. And where one purchased land at an administrator's sale duly authorized by order of the court of ordinary, which land was in the possession of *Page 235 such administrator, his deed will not be canceled on the petition of parties claiming an equitable title to such land, of which equity the purchaser had no notice.
4. Where plaintiffs rely upon express trust agreements in an action to recover land, and fail to set forth copies of such agreements in response to demurrer calling for them, the demurrer should be sustained.
5. Where all allegations in a suit to remove an administrator and to have a court of equity take charge of and administer an estate show that the court of ordinary, which has taken charge of administering the estate, can give full, complete, and adequate relief on each complaint, the petition alleges no cause of action and must be dismissed on demurrer.
It was further alleged: E. P. Carter as administrator obtained an order from the court of ordinary to sell 100 acres of lot 367 of Appling County, known as the Albert place, and on April 4, 1939, pursuant to the order and leave to sell, did sell and convey said land to L. W. Eason, and, as petitioners are informed and believe, received therefor $700 or more, although his return reporting the sale to the court of ordinary shows that he received only $200. He had no right to sell said land, for the reason that V. A. Carter during his lifetime sold the same to Gilbert Bell for $1000, six hundred dollars of which was paid to V. A. Carter, who had agreed to make Bell a warranty deed when the balance of the purchase-money was paid. E. P. Carter fraudulently represented to the court of ordinary the value of the estate as $400, when it was actually worth $3000 to $3500, and by such false representation procured the approval of the court of ordinary of his administrator's bond of $1000, which is wholly inadequate. E. P. Carter as administrator failed to make an inventory and have an appraisal made of the assets of the estate. He carried to his home in Florida certain personal property belonging to the estate, and either sold or converted to his own use all of the personal property of the estate; and he was unfit to represent the estate and had personal interests that conflicted with the best interests of the estate. Immediately upon his taking the oath and qualifying as administrator he took possession of all the *Page 237 real and personal property belonging to the estate of V. A. Carter, and has retained possession thereof ever since; and he and L. W. Eason have turpentined some timber on land of the estate, and should be required to account for its value. The prayers were, for injunction restraining E. P. Carter from further acting as administrator, and restraining both defendants from encumbering or conveying the lands described in the petition; that the court take charge of and administer the estate; that the administrator be required to pay into the court, or to some one by the court designated, all moneys held by him and belonging to the estate; for an accounting; for cancellation of the deeds from E. P. Carter to L. W. Eason; for temporary injunction; for judgment against E. P. Carter, for the benefit of the plaintiffs and of the estate, for all moneys and property received by him as administrator; for judgment decreeing title to a one-third undivided interest in the two tracts of land conveyed to Eason to be in each of the petitioners and their sister Marie Kingsberry; and for general relief.
Defendants filed general demurrers to the petition, on the ground that no cause of action was alleged. Carter as an individual and as administrator filed special demurrers, among which were attacks upon the allegations of trust agreements on the ground that copies of the alleged agreements were not attached to said paragraphs. The plaintiffs offered an amendment seeking to add to the petition three paragraphs, alleging: (1) That each of the deeds executed by V. A. Carter to E. P. Carter was made under a specific agreement and arrangement that E. P. Carter would put the property up as collateral to borrow money with which to pay the debts of V. A. Carter, with the provision that if the property was not used for this purpose it should be conveyed in conformity with the trust agreements alleged in the original petition. (2) That at the time of the death of V. A. Carter the petitioners were living upon and working the property; that they immediately began claiming the land as theirs under the agreement between their father and E. P. Carter, and continued to live upon, remain in possession of, and claim said property at the time defendant Eason purchased the same; and that Eason knew said facts, or by diligence could have learned them. (3) A prayer that each of the deeds from V. A. Carter to E. P. Carter be reformed by adding thereto the alleged trust agreements. This amendment was disallowed. *Page 238 The petitioners excepted to that ruling, and to the sustaining of the demurrers.
The original transcript of the record showed that paragraph 15 of the petition was in part as follows: "Petitioners further show, that, immediately after being appointed as such administrator and after taking the oath, the said E. P. Carter, as such administrator, undertook to take possession and control of all the real estate, as well as of the personal property, belonging to the estate of said V. A. Carter, and also of the 100-acre tract of land which had prior thereto been sold to Gilbert Bell." A supplemental certificate of the clerk of the trial court recites: "I, G. B. Eason, clerk of the superior court of Appling County, Georgia, do hereby certify that the following is a true and correct copy of the 15th paragraph of the original petition in the above-stated case: ``Petitioners further show, that, immediately after being appointed as such administrator and after taking the oath, the said E. P. Carter, as such administrator, took possession and control of all of the real estate, as well as of the personal property, belonging to the estate of said V. A. Carter, and also the 100-acre tract of land which had prior thereto been sold to Gilbert Bell.'" This last certificate recited that it was made pursuant to an order of the trial judge, adjudging that paragraph 15 of the petition read as then certified when filed in court and when the judgment excepted to was rendered. In this certificate was set out a petition by the defendants to the trial court, alleging that after the judgment of the trial court and before the transmission of the record to this court, without the knowledge of the clerk or defendants, an alteration had been made in paragraph 15 of the original petition, by striking the word "took" and inserting in lieu thereof the words "undertook to take;" and praying that the plaintiffs be required to show cause why the court should not enter judgment striking the alleged inserted words and inserting the word "took" as it originally appeared, so that the petition would read as it did when originally filed and when passed upon, and that when so corrected the clerk be required to certify and send to this court a correct copy of the true and correct petition passed upon by the trial court. The certificate recites that a rule nisi was issued and served upon the petitioners, and a hearing held, after which the judge ordered the correction of paragraph 15 of the petition as prayed, and the *Page 239
clerk was directed to send to this court his supplemental certificate certifying this corrected copy of paragraph 15, which the clerk did in a second certificate.
1. A preliminary question regarding the transcribed record, which affects the other questions presented, will first be decided. There are in the record two certificates by the clerk of the trial court. The record certified is materially different in the two certificates. This involves two questions, to wit: (1) Did the trial court have the right to correct the record which had been altered? (2) Could that court require its clerk to certify the corrected record after a certified copy of the record had been transmitted to this court? The first question must be answered in the affirmative. The record involved remains permanently of file in that court; only copies of same can be sent to this court on appeal. It is therefore an office paper of the trial court. Clark v. State,
2. The first two paragraphs of the offered amendment contained allegations that were in direct conflict with allegations in the original petition, and as to these paragraphs the judgment disallowing the amendment was not erroneous. Girvin v. GeorgiaVeneer Package Co.,
3. Did the petition allege a cause of action against Eason? There are no allegations showing that Eason knew of the claims of petitioners, or had notice of any facts or circumstances that if investigated would have led to knowledge of such claims. The petition shows that this defendant paid for each of the tracts of land and received deeds thereto. In this situation this defendant was an innocent purchaser for value and without notice. As such he is protected by law. Code, § 37-111. Cf. Webster v. Black,
4. The question whether the petition alleged a cause of action against E. P. Carter individually is determined by whether or not the deeds from V. A. Carter to E. P. Carter were trust deeds imposing a duty upon E. P. Carter to convey, at the death of V. A. Carter, all the lands therein to the petitioners and their sister. The petition alleges that each of these conveyances was made upon the express agreement and understanding that the grantee should hold the property in trust for the three daughters of the grantor, and at his death convey the same to said daughters. An express trust is therefore alleged; and the petition can not be construed as alleging an implied trust as contended by plaintiffs in their brief. Code, § 108-104; Eaton
v. Barnes,
5. The allegations against E. P. Carter as administrator included one that his bond was inadequate. There is a clear legal remedy for this complaint, by application to the court of ordinary as provided by the Code, § 113-1229. It is alleged that he has filed no inventory and had no appraisal made, as required by law; *Page 244
and these matters too can be presented to the court of ordinary and adequate relief there obtained. Code, §§ 113-1229, 113-1408. It is alleged that this defendant is mismanaging the estate and is removing and disposing of the personal property belonging to the estate; and upon these grounds petitioners seek to have him removed by a court of equity. None of these allegations constitutes ground for equitable relief, and petitioners have an adequate remedy in the court of ordinary. While equity has concurrent jurisdiction with the court of ordinary on administration of estates (Code, § 113-2203), this does not mean that courts of equity will interfere with the regular administration of estates by assuming jurisdiction of matters that the court of ordinary has adequate authority to handle. Code, § 37-403; Gaines v. Gaines,
Judgment affirmed. All the Justices concur.
Wood v. Bowden , 182 Ga. 329 ( 1936 )
Eaton v. Barnes , 121 Ga. 548 ( 1904 )
DeLoach v. Jefferson , 142 Ga. 436 ( 1914 )
Walker v. State , 153 Ga. 212 ( 1922 )
Gaines v. Gaines , 171 Ga. 169 ( 1930 )
Jones v. Robinson , 172 Ga. 746 ( 1931 )
Ellis v. Clarke , 173 Ga. 618 ( 1931 )
Darby v. Green , 174 Ga. 146 ( 1932 )
Caswell v. Caswell , 177 Ga. 153 ( 1933 )
Jansen v. Jansen , 180 Ga. 318 ( 1935 )
Brooks v. Brooks , 184 Ga. 872 ( 1937 )
Cooper v. Oglethorpe Savings & Trust Co. , 147 Ga. 570 ( 1918 )
Webster v. Black , 142 Ga. 806 ( 1914 )
Roach v. Roach , 143 Ga. 486 ( 1915 )
Howard Manufacturing Co. v. Water Lot Co. , 53 Ga. 689 ( 1875 )
Durrett v. McWhorter , 161 Ga. 179 ( 1925 )
Perry v. Central Railroad , 74 Ga. 411 ( 1884 )
Lyons v. Planters' Loan & Savings Bank , 86 Ga. 485 ( 1890 )
Clark v. State , 110 Ga. 911 ( 1900 )
Hancock v. Gunter , 195 Ga. 646 ( 1943 )
Kitchings v. Ameris Bank , 309 Ga. App. 837 ( 2011 )
Hoffman v. Chester , 204 Ga. 296 ( 1948 )
Whittle v. Jones , 198 Ga. 538 ( 1944 )
Jones v. Jones , 196 Ga. 492 ( 1943 )
Pita v. Whitney , 190 Ga. 810 ( 1940 )
Dumas v. Dumas , 206 Ga. 767 ( 1950 )
Bowman v. Century Funding, Ltd. , 277 Ga. App. 540 ( 2006 )
Bonner v. Norwest Bank Minnesota, N.A. , 275 Ga. 620 ( 2002 )
Turner v. Turner , 210 Ga. 586 ( 1954 )
Gaines v. Johnson , 216 Ga. 668 ( 1961 )
Allen v. Allen , 196 Ga. 736 ( 1943 )
Saliba v. Saliba , 202 Ga. 791 ( 1947 )
Furr v. Jordan , 196 Ga. 862 ( 1943 )
Astin v. Carden , 194 Ga. 758 ( 1942 )
Pierce v. Harrison , 199 Ga. 197 ( 1945 )
Nickerson v. Porter , 189 Ga. 671 ( 1940 )
Perry v. Hammock , 75 Ga. App. 171 ( 1947 )
Moore v. Wells , 212 Ga. 446 ( 1956 )