Murray v. Hawkins , 144 Ga. 613 ( 1916 )

Evans, P. J.

(After stating the foregoing facts.)

1. The form of the decree is attacked. It is said that the court should have passed seriatim on each exception of law and fact. In an equity cause exceptions of fact are submitted to a jury only when approved by the court. Civil Code (1910), § 5141. Where a verdict is returned in an issue formed on exceptions of fact to an auditor’s report, there must be a specific finding on each exception. It is insisted that inasmuch as the court by consent heard the case without a jury, it was his duty to pass seriatim upon-the exceptions of fact. This contention is not sound. It is only where the court approves the exceptions that they are to be passed upon-by a jury; and as the court found against all exceptions of fact, this was tantamount to their disapproval, and authorized the entry of a decree. Lamar v. Allen, 108 Ga. 158, 164 (33 S. E. 958). The decree is broad enough to pass upon all the issues which weTe made in the case.

2. The first suit by the plaintiff did not pray for process, and none was attached. The defendant did not waive process or plead. The suit was voluntarily dismissed by the plaintiff before the appearance term. The present action was commenced within six months from the dismissal of the first, but more than seven years had elapsed since the filing of the award. The first action did not constitute the pendency of a suit, so as to prevent the bar of the statute of limitations from arising, and give the plaintiff the right to bring a second action within six months of the dismissal of the first. McGhee v. Mayor &c. of Gainesville, 78 Ga. 790 (3 S. E. 670). The auditor held that the first suit under these circumstances never amounted to an action; and we concur in that ruling.

3. The auditor ruled that the administrator was authorized to submit to arbitration any matter which involved a controversy between his estate and a third person. The statute declares that administrators may, in good faith and with proper prudence, submit to arbitration the matters in controversy in connection with the estate they represent. Civil Code (1910), § 5020. Eor a physical precedent see Sheffield v. Clark, 73 Ca. 92. The matters found to have been submitted to arbitration by the administrator de bonis non involved tax deeds under executions issued after the death of the decedent, against his administrator, and certain other tax executions against the administrator transferred to the purchaser of the land. The present action was brought by the administrator de bonis non to set aside the award.

4. The evidence, though conflicting, was sufficient to authorize a finding that no fraud was perpetrated upon the administrator, that he participated in the arbitration, selected his arbitrator, was present at the hearing, had notice of the award, and receipted for the money found to be due him thereunder; and there was no error in the court’s refusal to disapprove the finding of the auditor that there was no fraud in the submission to arbitration, and in the subsequent award.

5. Certain attacks are made upon the legal sufficiency of the award, as for defects apparent on its face, and because of certain other matters dependent upon extrinsic evidence. The gravamen of the plaintiff’s suit, and indeed the only prayer, outside of that for process, is for the cancellation of the award. Whatever may be the merits of these various questions, the plaintiff, after having acquiesced in the award, acted upon it,' and accepted the benefits thereunder, is estopped from setting up its invalidity. Callaway v. Bridges, 79 Ga. 753 (4. S. E. 687); Pike v. Stallings, 71 Ga. 860 (5).

6. Moreover, more than seven years had elapsed from the making of the award and the filing of the same with the clerk of the superior court, before the bringing of the present suit. The suit is one quia timet, to cancel the arbitration proceedings as a cloud upon the plaintiff’s title. There is no contention that the plaintiff was ever in the actual possession of the land, and the evidence was without conflict that he had paid no taxes on it. The evidence also was without conflict that the defendant and those claiming under her had returned the land for taxation and paid the taxes thereon since the date of her ownership; and that during this time she had employed agents, at considerable expense, to continuously police the land against trespassers. If the plaintiff was the true owner of the land, being out of possession, he should have seasonably applied for cancellation of the arbitration proceedings alleged to be a cloud upon his title, under which the person in possession claimed title, and of which claim the alleged true owner had notice, or he will be barred by his laches. Following the analogy of the law, if the plaintiff has failed to bring his action, under these circumstances, within the time within which prescription could have ripened, such suit will be barred within seven years. Pierce v. Middle Georgia Land &c. Co., 131 Ga. 99 (61 S. E. 1114).

7. The auditor disallowed a question put to the plaintiff as a witness, inquiring if he had ever brought a suit as administrator to recover the land in Clinch county, sustaining an objection on the ground that the record of the suit would be the highest and best evidence. Subsequently the record was introduced' in evidence, and the witness was examined in respect to it. If there was error in the former ruling, it became immaterial in view of the subsequent evidence.

8. Objection was also taken to a refusal to allow the plaintiff to testify that when he signed the arbitration proceedings he did not have his reading glasses, and that he could not read with the glasses he had. The court excluded this testimony on the ground that inasmuch as the witness could read and write he would be bound by his signature. It appears from the brief of the testimony, that, after this ruling was made, counsel who made the objection asked the witness, on cross-examination, if he could read, to which the witness replied, “I can read with my glasses, but I didn’t have them. I just had these glasses, like I have got on now, and I can’t read with these.” The witness then was presented a paper and asked: “That is your signature, isn’t it?” to which he replied: “It looks very much like it; I can’t swear positively that it is mine. It may be.” And again on cross-examination, the witness was allowed to swear that he did not read any of the paper presented to him; that he could not read it; that he did not have any glasses which enabled him to read it. In view of all this testimony, which was considered by the auditor in making his report, we do not think that a new trial should result because of his ruling as to the admissibility of the testimony when offered in chief.

9. Both the findings of the auditor and the exceptions are numerous; but they all enter into and are controlled by the foregoing rulings. If there was no' fraud practiced upon the plaintiff in procuring the arbitration, and he acted upon it and received and accepted benefits thereunder, and delayed for more than seven years to bring any action to vacate the same, it is now too late to set aside the decree and revive the issues of the controversy, which were submitted to the arbitrators for decision. We therefore affirm the judgment of the court.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.