Spence v. Brown , 198 Ga. 566 ( 1944 )

1. The petition in this case cannot be maintained as a proceeding "to quiet title to land," for the reason that it describes no land; and for the further reason that, if the land had been properly described, the plaintiff fails to show any title to it.

2. Nor can the petition be maintained as a proceeding to recover possession of a deed held in escrow, for the reason that the plaintiff has an adequate remedy at law.

3. Nor can it be maintained as a petition in equity for accounting against an administratrix, for the reason that it is not one for accounting.

4. The petition is fatally defective for the reason that the contract alleged, under the facts pleaded, upon which the plaintiff seeks to recover, is not such a contract as would give her any standing in a court of equity.

5. There was no error in refusing to allow an amendment to the petition, under the facts set out in this case.

No. 15021. NOVEMBER 22, 1944. Mrs. Elizabeth Gorman Spence filed in the superior court a petition against Mrs. Mildred Gorman Brown, individually and as administratrix of the estate of W. S. Gorman, and John Andy Smith, alleging in substance: That on November 10, 1936, William S. Gorman (a brother of the plaintiff and Mrs. Brown) died . . state, "leaving an estate consisting of several parcels of land in Talbot County, Georgia, as well as valuable personal property, consisting of a large herd of cattle, horses and mules, household and kitchen furniture, accounts and choses in action, receivables and money deposited in banks;" that, immediately after the death of William S. Gorman, Mrs. Brown took possession of all the property of his estate and proceeded to control the same and to sell some of the personal property and to pay some of the debts, all of which was over the objection and protest of the plaintiff; that after much of the property had been sold and applied partially to the liquidation of some of the debts of the estate, on August 25, 1939, Mrs. Brown was appointed administratrix of the estate, and continued to sell assets belonging to the estate and to make further payment of debts, but there continues to remain in the hands of the administratrix much valuable property which is unadministered.

It was further alleged that, "at the behest of said administratrix, petitioner was called upon to furnish and did furnish various sums of money for the purpose of paying the expenses of the last illness of the deceased intestate, and provided for the care of a nurse during the illness of said intestate;" that the plaintiff and Mrs. Brown discussed the various-sums which had been advanced by them individually, and decided that the sums advanced more than exceeded the value of the remaining realty; that Mrs. Brown, as administratrix, advertised "certain lands and interests in lands of the deceased intestate," and on January 7, 1941, the same was offered for sale and sold to one Clarence Lumpkin, and the administratrix on the same day made a deed conveying the properties to Clarence Lumpkin, and Clarence Lumpkin thereupon agreed with the plaintiff and Mrs. Brown to immediately reconvey the properties to them upon their assumption of the payment of his bid, which they did, "in consideration of certain indebtedness owing by the estate of W. S. Gorman" to the plaintiff and Mrs. Brown "in a sum exceeding the amount for which the property had been purchased" by Clarence Lumpkin; that thereupon Clarence Lumpkin executed and delivered to the plaintiff and Mrs. Brown deeds in accordance with the agreement, and the deeds were left in the custody of the defendant Smith for the purpose of being recorded and delivered to the plaintiff and Mrs. Brown.

The plaintiff further alleged that the debts of the estate of greater dignity than those of the plaintiff and Mrs. Brown had all been paid, except the court costs; that it was agreed between the plaintiff and the defendants that the plaintiff and Mrs. Brown would each personally advance the sum of $40 for the payment of the court costs, and the plaintiff thereupon paid the sum of $4.50, and immediately offered to pay the balance of $35.50 whenever the same was demanded and the deeds to the property delivered to her; that subsequently the plaintiff tendered the sum of $35.50, and later the sum of $40, in lawful currency to the defendant Smith, "as custodian of the deed, and as escrow holder of the conveyance," and to Mrs. Brown; that, notwithstanding the tender of the money and the plaintiff's demands for the deeds, the deeds were not delivered, but that the defendants on subsequent occasions demanded the payment of higher sums to cover the court costs, which sums were tendered by the plaintiff, and the defendants failed and refused to deliver the deeds to the plaintiff; that the deeds from Clarence Lumpkin to the plaintiff and Mrs. Brown "were placed with John Andy Smith for recording and delivery to petitioner predicated upon the payment of the sum of $35.50, which sum was duly tendered as aforesaid, and John Andy Smith violated the terms of his trust by failing and refusing to deliver . . the deeds when the various sums were tendered to him."

The plaintiff prayed: (a) For process; (b) that a court of equity take jurisdiction of the estate of W. S. Gorman, "to the end that same may be settled in terms of law and distributed to the heirs; (c) that the court decree that the sale held on the 7th day of January, 1941, at which the said Clarence Lumpkin became the purchaser of said property, and conveyed the same to petitioner, be declared to be lawful, and the title of the said property be free from claims of the estate of said W. S. Gorman and other persons whatsoever;" (d) that, during the pendency of the litigation, the clerk of the court be required to enter the litigation involving all of the realty of W. S. Gorman in the lis pendens docket of the court; and (e) for general relief.

The defendant Mrs. Brown, in her representative and individual capacity, filed a special demurrer to the petition. She also filed separately a general demurrer to the petition on the grounds that: (1) the petition alleges no cause of action, in law or equity, against the defendant; and (2) the allegations of fact in the petition, when construed as a whole, do not allege any fact or facts which in law or equity authorize any relief or recovery against the defendant.

The defendant Smith demurred to the petition on the grounds that: (a) there is no equity alleged in the petition; (b) no fact or facts are alleged in the petition authorizing recovery against the defendant; (c) the petition contains no prayer for relief against the defendant; (d) no interest in the subject-matter of the petition is alleged to be in the defendant, and the defendant is not a proper party defendant in the case; and (e) no right or authority is shown in the defendant to receive payment, or accept money from the plaintiff.

On August 2, 1944, the trial court passed the following order: "To the petition in the above stated cause Mrs. Mildred G. Brown filed a general demurrer and Mrs. Mildred G. Brown, both in her representative and individual capacity, filed separately additional demurrers of a special nature. To said petition John Andy Smith filed separately and in the same paper general and special demurrers to said petition. Each and all of said demurrers above mentioned came on for hearing on July 21st, 1944, and after argument of counsel additional time was given to file briefs, and the court took said matters under advisement and consideration until this date. Briefs were subsequently filed by attorneys for both parties. Whereupon, it is hereby considered, ordered, and adjudged, that the demurrers referred to are each and all, both general and special, hereby sustained and the action dismissed."

On the same day that the order sustaining the demurrers was passed, the trial court refused to allow an amendment to the petition, passing an order as follows: "The plaintiff in the above stated cause having submitted to this court an amendment to her original petition, setting out a description of the property referred to in the original petition as having been embodied in a deed from Clarence Lumpkin to Mildred G. Brown and Elizabeth Gorman Spence, and also to further amend the prayers of the petitioner in said original action; after consideration of said proffered amendment, it is hereby considered, ordered, and adjudged that the same be and it is hereby disallowed and denied, the court having already sustained general and special demurrers to the petition and dismissing the same out of court."

Exceptions are to the judgment sustaining the demurrers, and to the judgment disallowing the amendment. 1. The plaintiff in error in her brief construes the petition now under consideration to be a petition "seeking to quiet title to land and enforce a specific performance of a contract for the delivery of a deed to land, which deed had been deposited in escrow with the defendant John Andy Smith to secure the payment of $35.50 court costs and law fees; and also for the purpose of compelling a settlement in equity of the estate of W. S. Gorman, . . and for general equitable relief." Dealing with the petition as it is dealt with by the plaintiff in error, was there error in sustaining a general demurrer and dismissing the petition? Was the petition good as a proceeding "to quiet title to lands?" The petition makes no effort to describe any land, but simply says "certain lands and interests in lands which had been the property of the deceased intestate." This language describes no land or real estate, and the petition must therefore fall as a proceeding "to quiet title to land." It further appears from the petition that the deed under which the plaintiff claims was held in escrow by John Andy Smith. "Delivery of a deed to another, to be delivered on certain conditions to the grantee, is in escrow. Code, § 29-105. But the second delivery by the escrowee to the grantee, and not the first by the grantor to the escrowee, is the one rendering the conveyance valid and complete and under which title passes." Foy v. Scott, 197 Ga. 138 (28 S.E.2d 107). The petition therefore shows that, had the property been properly described, the plaintiff had no title to it and could not maintain a petition "to quiet title."

2. Can the petition be maintained as a proceeding in equity to recover from the defendant John Andy Smith possession of a deed held by him in escrow? "For the recovery of personal property wrongfully withheld the common-law actions of detinue or replevin or analogous proceedings at law under the codes, generally afford an adequate remedy. Accordingly, equity will not, when such remedies are available, take jurisdiction for the sole purpose of decreeing a delivery of chattels." 30 C. J. S. 355, § 29. The escrow deed certainly is personal property, and the plaintiff has an adequate remedy at law for the recovery of the possession of the deed.

3. Can the petition be maintained "for the purpose of compelling a settlement in equity of the estate of W. S. Gorman?" A court of equity has concurrent jurisdiction with the ordinary over the settlement of accounts of administrators. Code, § 113-2203. This court is committed to the proposition that a suit in equity for accounting may be maintained against an administrator, notwithstanding the fact that the court of ordinary may require an accounting, so long as no actual proceeding for an accounting has been instituted in the court of ordinary. Ewing v. Moses, 50 Ga. 264; Strickland v.Strickland, 147 Ga. 494 (94 S.E. 766); Clements v.Fletcher, 154 Ga. 386 (114 S.E. 637); Calbeck v.Herrington, 169 Ga. 869 (152 S.E. 53); Stroup v. Imes,185 Ga. 422 (195 S.E. 411); Manry v. Manry, 196 Ga. 365 (26 S.E.2d 706). Therefore, if the petition in this case can be construed to be a petition in equity for accounting, it should not have been dismissed on general demurrer, provided it appeared that there was no proceeding for accounting in the court of ordinary. The petition is silent on that subject.

There is another section of our Code reading as follows: "Equity will not interfere with the regular administration of estates, except upon the application of the representative, either, first for construction and direction, second for marshaling the assets; or upon application of any person interested in the estate where there is danger of loss or other injury to his interests." § 37-403. Applying this section of the Code, this court in a number of cases has laid down the rule that equity will not interfere with the regular administration of estates, unless the necessity for so doing is made clearly to appear. Powell v. Quinn, 49 Ga. 523;Walton v. Reid, 148 Ga. 176 (96 S.E. 214); Hobby v.Ford, 149 Ga. 176 (99 S.E. 624); McKinney v. Powell,149 Ga. 422 (100 S.E. 375); Green v. Hall, 151 Ga. 728 (108 S.E. 42); Lefkoff v. Sicro, 189 Ga. 554 (6 S.E.2d 687, 133 A.L.R. 738).

The present state of the law, as these two Code sections have been construed and applied, is this: A court of equity will entertain a petition for accounting against an administrator, if no proceedings for accounting have been instituted in the court of ordinary. A court of equity will not otherwise interfere with the regular administration of estates, unless such interference is necessary or proper for the full protection of the rights of the parties at interest; and to authorize such interference, the facts must clearly show that there is a good reason for so doing. The petition in this case alleges no wrongdoing on the part of the administratrix as such, but by inference alleges a failure on her part to carry out an agreement made in her individual capacity. There is no allegation of danger of loss or other injury to the interest of the plaintiff as an heir to the estate. There is not even an allegation as to any demand made upon the administratrix for settlement. The prayer of the petition on this subject is as follows: "That the court of equity take jurisdiction of said estate of W. S. Gorman, to the end that the same may be settled in terms of the law and distributed to the heirs." We can not construe the petition in this case to be one for accounting. It amounts to nothing more than an attempt to transfer the regular administration proceedings from the court of ordinary to a court of equity without alleging any good reason in equity for so doing.

4. The petition was fatally defective and was properly dismissed on general demurrer, for the further reason that the allegations failed to establish the fact that the plaintiff has any standing in a court of equity for any relief. Her right to recover, as to all relief sought, is based upon an alleged agreement made with her sister, the administratrix, by the terms of which they agreed to receipt the estate in the amount of the purchase-price of the land as against alleged claims that each held against the estate. They certainly could not enter into any such agreement unless all other creditors of the estate of equal rank with them had been paid. This the petition failed to allege. There was an allegation that all claims of superior dignity had been paid, but the petition is silent as to the claims of equal dignity.

5. Error is assigned upon the failure of the trial judge to allow an amendment to the petition. The bill of exceptions recites that the amendment was tendered on the same day that the order sustaining the general demurrers was signed, after the order had been signed, but before it had been filed in the clerk's office. The trial judge, in the order refusing to allow the amendment, recites that the general demurrers had been sustained and the petition dismissed before the amendment was presented, and for that reason the amendment was disallowed. The plaintiff in error contends that it was error on the part of the trial judge to refuse to allow the amendment under these circumstances. Frazier v. Beasley, 186 Ga. 861 (199 S.E. 194); Grogan v. Deraney, 38 Ga. App. 287 (143 S.E. 912);Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568 (150 S.E. 569); Dabney v. Benteen, 35 Ga. App. 203 (132 S.E. 916); and Deen v. Baxley State Bank, 192 Ga. 300 (15 S.E.2d 194); are cited and relied upon as authority for this position. These cases simply hold that a judgment may be modified or set aside at the trial judge's discretion until the end of the term, and that the discretion is not arbitrary. The demurrers were set down for argument on July 21, and after argument counsel were given additional time to file briefs, and did file briefs. The order sustaining the general demurrers was not signed until August 2. Under these circumstances, we can not say that the trial judge abused his discretion in refusing to allow an amendment to the petition tendered to him on August 2, after he had signed the order sustaining the general demurrers, but before the order had been filed in the clerk's office.

From what has been said above, it appears that there was no error in sustaining the general demurrers and dismissing the petition.

Judgment affirmed. All the Justices concur.