Hobbs v. Houston , 190 Ga. 505 ( 1940 )

1. If a plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit will be granted. Code, § 110-310.

2. The petition being based on the theory that a conveyance absolute on its face, wherein the plaintiffs' intestate was grantor, and one of the defendants the grantee, was in reality a mere security deed, and that the indebtedness had been paid, so as to reinvest the legal title in the plaintiffs' intestate, the burden was in all events on the plaintiffs to make it affirmatively appear that the indebtedness had been paid.

3. Declarations of the grantor, then in possession, but since deceased, tending to show payments by him to the grantee, are mere hearsay, and as such have no probative value. Eastlick v. Southern Ry. Co., 116 Ga. 48 (43 S.E. 499). See Rucker v. Rucker, 136 Ga. 830 (72 S.E. 241), and cit.

4. The rule that when a plaintiff is entitled to recover for detention of his land, the defendant is liable, not merely for what he realized in the way of rents or profits, but its actual fair rental value, has no application to a mortgagee or holder of a security deed, admitted into possession. In the latter case, he is held accountable only for the profits actually received, where ordinary diligence is exercised. Powell on Actions for Land, § 419; Page v. Blackshear, 78 Ga. 597 (3 S.E. 423); Cook v. Powell, 160 Ga. 831 (6), 832 (129 S.E. 546).

5. If a grantee sells and conveys property to a third person who takes without notice of an outstanding equity, the purchaser, as against the original grantor, his personal representative or his heirs at law, will acquire the legal title unaffected by such equity. Copelin v. Williams, 152 Ga. 692 (111 S.E. 186).

6. "The neglect of a party excepting to an auditor's report on matters of fact, or on matters of law dependent for their decision upon the evidence, to set forth, in connection with each exception of law or of fact, the evidence necessary to be considered in passing thereon, or to point out the same by appropriate reference, or to attach as exhibits to his exceptions those portions of the evidence relied on to support the exceptions, is a sufficient reason, in an equity case, for refusing to approve the exceptions of fact and for overruling the exceptions of law." Smith v. Wilkinson, 143 Ga. 741 (2) (85 S.E. 875); First State Bank v. Avera, 123 Ga. 598 (51 S.E. 665); Armstrong v. American National Bank of Macon, 149 Ga. 165 (86 S.E. 1087). See Coosa Land Co. v. Edgerton Mfg. Co., 165 Ga. 808 (142 S.E. 149); Loyd v. Camp, 172 Ga. 510 (158 S.E. 40).

7. Applying the foregoing rulings to the instant record, no error appears in the judgment overruling the exceptions to the report of the auditor, and in approving his report granting a nonsuit and dismissing the case.

Judgment affirmed. All the Justicesconcur.

No. 13350. JUNE 13, 1940. On April 13, 1937, Hudson Hobbs et al., as administrators of the estate of David Hobbs, deceased, filed in Worth superior court a petition against G. L. Houston of Worth County, and J. W. Holley of Dougherty County, and sought to have canceled and set aside two deeds as an alleged cloud on the title of their intestate; one of them being a warranty deed executed by the intestate in 1924 to the defendant Holley for a stated valuable consideration, as shown by the copy of that deed attached to the petition; and the other a deed executed by Holley to the defendant Houston on April 5, 1937. The petition alleged that the first was in fact, though not so appearing on its face, a security deed, and that the debt which it was given to secure had been paid; that Houston took his deed from Holley with knowledge of petitioners' claim to the land, for that about eight days before purchasing the property and accepting the deed from Holley he had signed as surety the bond of administrators, and such action on his part put him on notice of petitioners' claim; that at the time of filing the petition they were in possession of said property; that Houston procured the conveyance to himself by colluding with Holley, who conveyed the property to Houston for the reason that his own reputation in the county was bad, and he thought his interest would be better served by selling the property to Houston; and that Houston was guilty of fraud in thus buying from Holley. The petitioners alleged payment by their intestate of more than the amount of his indebtedness to Hobbs, deceased; that at the time Hobbs executed his deed to Holley he resided on the land and continued so to reside until his death in 1931; that Holley took immediate possession of the land after the intestate's death, and remained in possession during the years 1932, 1933, 1934, 1935, and 1936, and received therefrom rents and profits the exact amounts of which petitioners were unable to state; that during those years Holley cut and sold pine trees for sawmill purposes, and sold the turpentine privilege, for all of which he received stated sums; and that he was more than repaid the amount of the loan made by him to the intestate. The prayers (beside those for process and for second original to be served on Holley) were for accounting as to the sums received by Holley, and that "if it is determined that same equals or exceeds the amount advanced by Holley to said Hobbs, said deeds be handed up and canceled, and that petitioners have judgment against said J. W. Holley for anything he shall have received in excess of the amount of his debt, with interest;" for recovery of the land, and for writ of possession; and that Houston be permanently enjoined from interfering with the possession of petitioners.

The defendants filed answers. Houston averred: "David Hobbs [the deceased] stated that if defendant Holley would pay certain of his debts and make him advances of money and protect the property against his debts existing against it, and against the said Hobbs, which were then and there agreed upon and estimated to be $1200 in addition to the debt to Sylvester Banking Company, above mentioned, that said Hobbs would give said defendant [Holley] a deed to the property. On this consideration and agreement made then and there between said defendant and said Hobbs, said defendant received an absolute deed to said property for the purpose of protecting him in paying the indebtedness and advances for said Hobbs, with the privilege to said Hobbs to redeem the property; said defendant agreeing to resell it and reconvey it upon the repaying of said amounts of money paid out, or to be paid out, for the deed; provided this option to redeem should be exercised within a reasonable time thereafter; and this option was never exercised; and nothing ever done toward the exercise thereof by the said Hobbs, or by any one for him." He denied that he colluded with Holley, and that he was guilty of any fraud in the procurement of his deed. Holley made similar admissions as to the transaction between himself and Hobbs, but denied all other material allegations, such as that petitioners were in possession of the property when they filed their action or when Holley made his conveyance to Houston.

The case was referred to an auditor, who, after hearing the evidence given by the plaintiffs' witnesses, rendered his report finding in favor of a motion for a nonsuit. Exceptions of fact and of law were filed by the plaintiffs. They were overruled, and the auditor's finding was affirmed. The petitioners excepted.