Joel v. Joel , 201 Ga. 520 ( 1946 )

The petition for partition in equity — showing that the property, consisting of three apartment houses, can not be divided in kind, and that it is necessary to adjudicate the exact portion of the proceeds from the sale to which each of the owners is entitled, and to follow the procedure prescribed by the act of 1939 (Ga. L. 1939, p. 344), in order to convey to the purchaser a title free from restrictions or conditions, and praying for a sale and distribution by a receiver under orders of the court — alleged grounds for the relief sought, and was not subject to the general demurrer.

No. 15615. NOVEMBER 13, 1946. This is a suit for partition in equity. The petitioners are: Jake Brandt Joel, Charles Joel, and Mrs. Hannah Joel Beaullieu, as executors of the will of Mrs. Etta Joel, deceased, Jake Brandt Joel and Charles Joel, as trustees under item 1 of the codicil to the will of Mrs. Etta Joel, and Jake Brandt Joel, Charles Joel, Mrs. Hannah Joel Beaullieu, Richard Joel, Mrs. Beula G. Joel, Mrs. Esther S. Joel, and Charles Joel Jr., as individuals. The defendants are: Robert Joel, a minor 18 years old, Donald Joel, a minor 14 years old, Mrs. Frances J. Lurie, who is sui juris, B. P. Joel Jr., a minor 14 years old, Ralph H. Joel, a minor 11 years old, Mrs. Francis J. Lurie, as administratrix of the estate of B. P. Joel, deceased, Mrs. Francis J. Lurie, as guardian of B. P. Joel Jr. and Ralph H. Joel, and The Georgia Development Company.

The petition alleges that the petitioners and the defendants are the owners of a described tract of land, being lots Nos. 22, 22 1/2, and 23 of block 1 of the property of The Georgia Development Company according to plat by E. L. Griggs, recorded in deed book 15, pages 656 and 657. All of the described land was formerly owned by The Georgia Development Company, and the deeds out of that company contained four restrictions, and provided that, if any of the restrictions was violated, the title would be thereby forfeited and would immediately revert to The Georgia Development Company or, in case of its dissolution or liquidation, to any one or more of its stockholders who may see fit to claim title. It was alleged that The Georgia Development Company had surrendered its charter, and had been dissolved for more than 14 years when this action was brought. The petition sets forth various conveyances of the property involved, culminating finally in a deed dated January 1, 1932, from Mrs. Etta Joel to Mrs. Etta Joel, Mrs. Beula G. Joel, Mrs. Frances H. Joel, and Mrs. Esther S. Joel, stipulating the respective interests of the four grantees as follows: Mrs. Beula G. Joel, $55,593.60; Mrs. Etta Joel, $30,539.06; Mrs. Frances H. Joel, $44,681.70; and Mrs. Esther S. Joel, $28,590.85; and providing that their interests should be an undivided interest in the proportion that the amount of the dollars and cents named bore to the sum of $159,405.51 Mrs. Etta Joel thereafter died testate while owning her share as indicated by the deed last mentioned, naming as her executors, Jake Brandt Joel, Charles Joel, and Mrs. Hannah Joel Beaullieu, who qualified as such. Mrs. Frances H. Joel conveyed her interest on July 5, 1932, to B. P. Joel, who died intestate, leaving as his heirs at law his widow, Mrs. Frances H. Joel, and two minor sons, B. P. Joel Jr. and Ralph H. Joel. Mrs. Frances H. Joel was appointed and qualified as administratrix of the estate of her husband. She married and became Mrs. Frances J. Lurie, and later was appointed guardian of the two minor sons, B. P. Joel Jr. and Ralph H. Joel. By an administrator's deed she conveyed the interest of B. P. Joel in the property here involved to herself as guardian of B. P. Joel Jr. and Ralph H. Joel, the deed incorrectly describing the interest as 25%. It is further alleged that Jake Brandt Joel before filing this suit made a diligent effort to ascertain the last stockholders of The Georgia Development Company and heirs of such stockholders as were deceased, and that he procured from all such stockholders and heirs of deceased stockholders a conveyance of the reversionary interest which they might have under the deeds executed by the corporation to the land here involved. The petition alleges that a number of minors are interested in the property, and that there are contingencies under the will of Mrs. Etta Joel, whereby children yet unborn might have an interest, and that it will be necessary to ascertain and adjudicate the respective interests of all parties at interest and to distribute the proceeds from sale under order of the court, and that other complications make it necessary that a receiver be appointed and by order of the court directed to sell the property, which is incapable of division in kind, being three large apartment houses, and to dispose of the proceeds under the order of the court. It is further alleged that, if the property be sold subject to the restrictions in the original deeds, which provide for a forfeiture and reversion in the event of a violation of such restrictions, or subject to any interests unborn children might have therein, these uncertainties would so depress the value that a fair bid could not be obtained. It is prayed: that a receiver be appointed; that notice as provided in an act approved March 24, 1939 (Ga. L. 1939, p. 344) be given, requiring all persons whomsoever having or claiming any interest in the subject-matter of the suit to intervene and set up any claim they might have; that the property be sold free from lien, restriction, or encumbrance of any kind, and the purchaser be given a fee-simple title; and that by proper order of the court the proceeds be distributed by the receiver to all parties having an interest according to such interest as may be shown.

The defendants demurred on the general grounds, and urged that the petition failed to show with that degree of certainty which is required by law all the owners of the property and the exact interest of each of such owners. Upon the hearing the demurrer was overruled, and the defendants except. If the petition as amended indicates doubt as to the validity of the title to be acquired by a purchaser at the sale, which would discourage bidders, the demurrer should have been sustained and the petition dismissed. Hill v. McCandless, 198 Ga. 737 (3) (32 S.E.2d 774).

The most serious question as to the title arises on account of the restrictions contained in the deed from the original grantor, The Georgia Development Company, and the clause in that deed, to the effect that in the event any of the four express restrictions were violated the title would thereupon immediately revert to the grantor or, in the event of its prior dissolution, to any or all of its stockholders. To offer the property in question for sale subject to these restrictions and the reverter clause, would undoubtedly render the title uncertain and thereby discourage bidding. But this reversionary interest is such an estate as may be legally assigned. Cooper v. Davis, 174 Ga. 670 (163 S.E. 736);Shockley v. Storey, 185 Ga. 790 (196 S.E. 702). It follows, therefore, that if the present owners of the property have procured a conveyance of this reversionary interest to themselves, a sale on the petition of the owners, free from any lien or interest whatever, would vest the purchaser with absolute title in fee simple. The petition alleges that one of the petitioners, Jake Brandt Joel, prior to the filing of the petition, made a diligent effort to ascertain all of the last stockholders of the corporation, which had been dissolved more than fourteen years, and procured from such stockholders as were in life and all the heirs of those deceased a conveyance of this reversionary interest to himself. It follows, therefore, that, unless there exist other stockholders or heirs of stockholders from whom the petitioner, Jake Brandt Joel, failed to procure a conveyance of this reversionary interest, a sale by a receiver as prayed in this petition would undoubtedly vest the purchaser with unconditional title freed from the restrictions or the effect of the reversionary clause contained in the original grantor's deed. But since the petition as amended fails to allege positively that a conveyance of such interests had been procured from all of the last stockholders in life and the heirs of those deceased, it shows a possibility that there are some still holding this reversionary interest. Is this an insurmountable legal obstacle to the relief sought? We think not. In virtue of the provisions of an act of 1939 (Ga. L. 1939, p. 344), when this possible interest of others not parties to the suit was made to appear to the court, that court was given authority to issue an order directed to all persons having an interest in the subject-matter of the suit to intervene and plead such interest, thus making all necessary parties for the grant of the relief sought in this respect; and it is there provided that, upon failure of such parties to intervene, they will be precluded by the judgment rendered. See Suttles v. J. B. Withers Cigar Co., 194 Ga. 617 (22 S.E.2d 129). The present petition sought the issuance of such an order. It, therefore, appears that, in so far as this contingent reversionary interest is concerned, the amended petition was sufficient to authorize the relief sought.

Another matter that is urged here as creating a doubt and uncertainty as to the title is the provision of a will of a joint owner of the property whereby minors own an interest, and it is possible that children yet unborn have an interest. But in view of the fact that the executors of the will are parties to this action, and that guardians of the minors and trustees of interests belonging to minors are all parties to this suit, a judgment granting the relief here sought would be conclusive and binding upon all minors, whether in life or yet unborn. Code, § 113-801; Peck v. Watson, 165 Ga. 853 (142 S.E. 450, 57 A.L.R. 560); Willingham v. Watson, 165 Ga. 870 (142 S.E. 458).

The allegations — showing these complicated questions and causing it to appear that a proper distribution of the proceeds of the sale of three apartment houses not divisible in kind will require an adjudication as to the precise interests of the various interested parties, and showing the difficulty of executing a deed of sale by the owners — make a case justifying the appointment of a receiver and the sale of the property by such receiver under the order of the court, as well as a distribution of the proceeds under the order of the court. Code, §§ 85-1501, 85-1502, 85-1504. The petition alleged a cause of action and was not subject to the grounds of the demurrer, and the court did not err in overruling the same.

Judgment affirmed. All the Justices concur.