Dubois v. Smith

1. Although there must be an eviction in an action on a general warranty of title to land, or what is equivalent or tantamount to an eviction, it is not always necessary that there should be an actual dispossession of the warrantee. If the paramount title is so asserted that he must presently yield to it, or go out, the warrantee may purchase from the true owner, and this will be considered a sufficient eviction to constitute a breach.

2. "A declaration in attachment, being necessarily predicated upon the proceedings in attachment to which it makes reference, must be construed in connection with those proceedings, including the allegations in the affidavit for attachment." Merchants Grocery Co. v. Albany Hardware Mill Supply Company, 44 Ga. App. 112 (2) (160 S.E. 658).

DECIDED FEBRUARY 21, 1948. James Smith sued out an attachment against T. V. DuBois, hereinafter referred to as the defendant, and the attachment was levied on certain property of the defendant. It was alleged that the defendant resided out of the State of Georgia and was indebted to Smith in the amount of $1360.45 with interest at 7% per annum from April 15, 1942. Smith filed a declaration to which was attached a detailed statement of account. The defendant filed an answer, in which he denied any indebtedness and alleged that prior to this suit he was indebted to Smith in the sum of $985.95, but had paid him by a check marked in full settlement, which was accepted and retained by the plaintiff. Later the defendant amended his answer and alleged that Smith was indebted to him because of a failure of the warranty title to property sold by Smith to the defendant, which transaction was the basis of the attachment suit. Thereafter, the defendant again amended his answer and alleged: that he had purchased realty, a farm, upon which was growing timber, certain lumber, and other property, from Smith as evidenced by a contract and deed; that after the defendant had paid Smith all of the purchase-money due on this transaction except the money due for the lumber, the defendant discovered that Smith had sold certain standing or growing timber on the realty which the defendant had purchased from the plaintiff to Menlo Fruit Package Company without the knowledge of the defendant; that Smith admitted this transaction and stated he had sold the timber to said fruit package company, and that it had a right to cut and remove the timber unless their claim could be settled; that said company began cutting the defendant's timber, and the defendant was forced to pay said package company $100, and bind himself to pay said company $300 more upon the surrender of the contract it held from Smith; and that Smith is a nonresident of this State, where he has no property.

Upon motion of counsel for Smith the amendments to the answer of the defendant were stricken, and the defendant excepted pendente lite.

The case proceeded to trial, and the jury returned a verdict in favor of Smith. The defendant filed a motion for new trial based on the general and five special grounds. This motion was overruled, and the defendant excepted. 1. Since a motion to strike is in the nature of a general demurrer (Braddy v. W. T. Rawleigh Company,64 Ga. App. 682, 14 S.E.2d 130), the question presented by the exceptions pendente lite is whether the amendments to the answer of the defendant set forth a valid defense as against a general demurrer.

The plaintiff contends that the amendments were properly stricken because the facts set forth in the amendments do not constitute a breach of warranty entitling the defendant to any damages whatever.

The plaintiff relies upon the decision in White Corbitt v.Stewart Co., 131 Ga. 460 (62 S.E. 590, 15 Ann. Cas. 1198), wherein it was held: "In an action on a general warranty of title to land against the claims of all persons, an eviction or equivalent disturbance by an outstanding paramount title must be alleged."

While the amendments to the answer do not allege an actual eviction, we are of the opinion that the facts alleged set forth an equivalent disturbance by an outstanding paramount title.

In effect the amendments to the answer alleged that prior to the sale by Smith to the defendant of the realty, on which timber was growing, and certain lumber and other property, Smith had sold certain timber standing or growing on the realty, subsequently sold to the defendant, to Menlo Fruit Package Company; that the plaintiff admitted this and stated that the package company had a right to cut and remove the timber unless their claim could be settled; that the package company entered on the realty of the defendant and began cutting the timber, claiming a paramount outstanding title from the common grantor Smith, the plaintiff; that the defendant was forced to purchase the right of the package company or presently yield to it; and that the defendant had purchased the right of the package company to the timber.

In Joyner v. Smith, 132 Ga. 779 (1, 2) (65 S.E. 68), it is said: "In an action on a general warranty of title to land against the claims of all persons, an eviction or equivalent disturbance by an outstanding paramount title must be alleged. Although there must be an eviction, or what is equivalent or tantamount to an eviction, it is not always necessary that there should be an actual dispossession of the warrantee. If the paramount title is so asserted that he must presently yield to it, or go out, the warrantee may purchase from the true owner, and this will be considered a sufficient eviction to constitute a breach." See, in this connection, Clements v. Collins,59 Ga. 124 (1).

We think that the trial judge erred in striking the amendments to the defendant's answer on motion of the plaintiff.

2. The original attachment provides: "James Smith . . says that T. V. DuBois . . is indebted to James Smith in the sum of thirteen hundred sixty dollars 45 cents, principal, with interest at 7 percent per annum from 15 day of Apr. 1942." In the declaration in attachment no mention is made of the interest claimed to be due from DuBois to Smith, but the declaration refers distinctly to the attachment and states that the attachment was returnable to a certain term of the superior court and describes the property upon which the sheriff had levied.

The defendant contends that the trial judge erred in instructing the jury to return a verdict for interest at seven percent from the date of the indebtedness up to the present time if they found the plaintiff entitled to recover. The defendant points out that the declaration makes no reference to the interest, and insists that the charge was not authorized by the pleadings.

In King v. Thompson, 59 Ga. 380 (5), it is said: "A declaration in attachment will be construed in connection with the attachment papers when it refers distinctly to those papers, and such declaration will be held sufficient if the debt be distinctly declared upon, and the attachment papers be described as pending in the court and returnable to a certain term thereof, though no special prayer for judgment be in the declaration."

Construing the declaration in connection with the attachment, on which the declaration is based, we think that the pleadings authorized the instructions of the trial judge relative to the question of interest. Therefore it follows that special ground 2 of the amended motion for new trial is without merit. MerchantsGrocery Company v. Albany Hardware Mill Company, supra.

3. Since the errors complained of in special grounds 1, 3, 4, and 5 are not likely to occur in the second trial of this case, they will not be considered; and since the case is being returned to the trial court for another trial, this court will not consider the general grounds of the motion for new trial.

Judgment reversed. Gardner and Townsend, JJ., concur.