Callaway v. Irvin , 123 Ga. 344 ( 1905 )

Evans, J.

(After stating the facts.) 1. As the land which Mrs. Bryant claimed as dower was actually admeasured by commissioners appointed to set apart dower to her out of the lands of her deceased husband, and as she went into possession of this tract, and all persons concerned acquiesced -in her assertion of a dower estate therein, including the defendant’s predecessors in title, it matters not that no formal judgment of the superior court assigning dower to her was shown to have been rendered. Wells v. Dillard, 93 Ga. 682. The right of action of the plaintiff did not accrue until the death of Mrs. Bryant. Id. 683; Napier v. Anderson, 95 Ga. 618.

2. The plaintiff swore, as a witness on the trial, that at the time the executor of his father’s will procured the order of the chancellor authorizing a sale of the property of the estate, he (the plaintiff) was only nineteen years of age; that he had no notice of. the executor’s petition for direction, and did not sign the written consent upon which the order was based, nor authorize any one to sign his name thereto; and that not until after his mother’s death in 1898, when he was investigating his rights with respect to the lands set apart to her as dower, did he learn of the sale made by . the executor under color of that order. Counsel for the defendant in error insists, however, that it was not the right of the plaintiff to make this collateral attack upon the order, which is to be treated as the judgment of a court of competent jurisdiction, and the presumption indulged that the plaintiff did consent in writing and that , all necessary jurisdictional facts were made to appear to the chancellor. Unless the record of the proceedings shows on its face the want of jurisdiction to pass the order, the position of counsel is doubtless maintainable. Mayer v Hover, 81 Ga. 309, 315. But it affirmatively appears that the judge acted upon the petition without procuring the written consent of Martha L. Spratlin (formerly Miss Calla-way), who was one of the beneficiaries under the will of Seaborn Callaway; and if such consent on her part was necessary, then the record shows upon its face that the order of the judge was void for want of jurisdiction to pass it, as the petition filed by the executor names her as one of the children of his testator who was interested in the estate. The order, if void, could be collaterally attacked by the plaintiff, unless he was for some reason estopped from calling into- question its validity. His testimony was therefore pertinent as tending to show he was not instrumental in procuring the order or effecting the sale thereunder, he not having any notice of the proceeding or its result until after his mother’s death, years after the sale. It further appears from the testimony introduced in his behalf that he never received any of the proceeds arising from the sale.

3. The only authority which the chancellor had to entertain jurisdiction of that proceeding in vacation was such as was conferred by the act of March 17, 1866. (Acts of 1865 — 6, p. 221; Civil Code, §4855.) That act declares that when, “for any reason already existing or to exist, it becomes impossible to carry out any last will and testament, in whole or in part, the judges of the superior court shall have power to render at chambers, during vacation, any decree that may be necessary and legal in the premises; provided all parties in interest consent thereto in writing, and there is no issue as to facts; or if there is such an issue, there is a like consent in writing that the judge presiding may hear and determine said facts, subject to a revision by the Supreme Court, as in other cases;” and provided further, “that in all cases where minors are interested, the consent of the guardian at law or guardian ad litem shall be obtained before such decree is rendered.” If Mrs. Spratlin was a party “ in interest,” the written consent of her husband, acting in his individual capacity and as guardian ad litem for minor children, was insufficient to give the judge jurisdiction over her or to authorize him to pass any order disposing of the property of the estate. The will provided that upon the death of the testator’s wife, his executors should divide his property equally between his surviving children and the offspring of deceased children. Mrs. Spratlin was therefore to receive her share of the estate only in the event she survived her mother. The evidence discloses that the husband of Mrs. Spratlin never made any attempt to reduce her interest in the estate to his possession in the exercise of his marital rights. Accordingly, when the order of sale was passed, she was a party at interest. Archer v. Guill, 67 Ga. 195; Sterling v. Sims, 72 Ga. 51; DeVaughn v. McLeroy, 82 Ga. 704 et seq., and cases cited; Arnold v. Limeburger, 122 Ga. 72. On the day that order was passed (December 13, 1866), the married woman’s law went into effect; so, when the sale took place, her interest in her father’s estate had become a part of her separate estate. Since that time she has not been deprived of such interest by any act on the part of her husband. She, and not he, was therefore the party in interest whose written consent was essential to confer jurisdiction upon the judge of the superior court to pass the order of sale, unless it be that the assent of both was necessary in order to cut off his future right to reduce her property to his possession. The record of the proceedings before the judge disclosed the fact of her marriage, as well as the fact that she was a beneficiary under her father’s will; nevertheless, as the record also shows upon its face, her written consent to the judge’s entertaining jurisdiction of the executor’s petition for direction was not procured, and the order of sale was consequently a mere nullity. Nothing passed to the purchaser at the executor’s sale, and the legal title to the reversionary interest in the tract of land set apart as dower was not shown to be in the defendant.

4. The present action is in no legal sense a renewal of that brought jointly by the plaintiff, Simeon Parker Callaway, and others claiming under the will of Seaborn Callaway. White v. Moss, 92 Ga. 244. Their right to recover depended upon their ability to show that they and each of them had title as against the defendant. Wooding v. Blanton, 112 Ga. 509. If one was not entitled to recover, there could be no recovery by any of his coplaintiffs. Walker v. Pope, 101 Ga. 666; McGlamory v. McCormick, 99 Ga. 148, and eases cited. The fact being brought to light on the hearing of that case that Simeon Parker Callaway was estopped from setting up title to the land, because of the deed executed by him in his representative capacity as executor of his father’s estate in pursuance of the sale he had brought about, a finding in favor of the defendant against all of the plaintiffs was the only logical result of the trial. Medlock v. Merritt, 102 Ga. 212. All the facts with regard to the executor’s sale and the connection which the plaintiffs had with the proceeding and the order of the judge under which it was made were ventilated at that hearing. Upon what reason the presiding judge placed his judgment does not appear, but that the judgment was right is apparent. The defendant relied, upon the trial of the ease now under review, upon this previous adjudication as sustaining his plea of res adjudicata, insisting that a trial was had upon the merits and the same issues were involved. He did not, however, undertake to go further and show what was actually decided.

Upon the party setting up an estoppel by judgment rests the burden of proving it. 1 Herman, Estoppel, § 410. It matters not how numerous the questions involved in the suit may be, provided they were tried and decided (Id. § 210),; for the judgment is conclusive not only of the thing directly decided, but of every fact which was essential to the adjudication. Id. §231. "Any conclusion which the court or jury must evidently have arrived at in order to reach the judgment or verdict rendered will be fully concluded.” 24 Am. & Eng. Enc. L. (2d ed.) 766. But even if a particular matter was put in issue, “if the issue was not determined, by reason of the decision turning upon some other point, or otherwise, there is no estoppel.” Id.. 776 — 7. And if “there be any uncertainty as to the precise issue involved and .determined in the action, as, for example, if it appear that several distinct matters were litigated, upon any one or more of which the judgment may have turned, the whole matter of the action will be at large and open to subsequent controversy.” ' Id. 773-5. Thus, where several defenses are pleaded, and the judgment does not show upon which issue the decision was rendered, there is no estoppel. Id. 775, note, “and cit. “It is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment.” De Sollar v. Hanscome, 158 U. S. 216. In the case before us no such certainty exists; the defendant in the first suit interposed several defenses, one of which was that Simeon Parker Callaway was es-topped, by the deed he had executed, from asserting title to the land; and this special defense was established, and affected not only his right to recover, but also cut off his coplaintiffs from any recovery in that suit, independently of whether any of the other defenses were meritorious. That the judge reached the conclusion that the defendant had the belter title rests upon' the bare surmise that the judge may have fallen into the error of so deciding instead of placing his judgment upon the ground that one of the plaintiffs was clearly estopped from setting up his claim of title. As was held in Worth v. Carmichael, 114 Ga. 699, “A judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issues aótually made and determined in the former litigation.” See also Draper v. Medlock, 122 Ga. 234. That the plaintiff had an opportunity of having the merits of his claim passed on by the court, and was not cut off therefrom by the fact that one of his coplaintiffs had estopped himself from maintaining the action, should be made to affirmatively appear before the plaintiff is denied the privilege of proving, as he is now able to do, that his claim is just. “The estoppel” which the law contemplates “ does not depend upon technicalities, but rests in broad principles of justice, and it can apply only when the party has had his day in court and an opportunity to establish his claim. . . Nothing would seem to be plainer than that, no man could be barred by a judgment against him who was not by the issue placed in such a position that establishing his de-. mand would entitle him to a judgment in his favor.” Fifield v. Edwards, 39 Mich. 266-7. So it has been held that even in an, equitable proceeding the rulé is not different, and “ where in the answer various matters of defense are set forth, some of which relate only to the maintenance of the suit, and others to the merits, and there is a general decree of bill dismissed, from which it does not appear what was the prevailing ground of defense, it is. impossible to hold that the decree operates to preclude future proceedings.” Foster v. The Richard Busteed, 100 Mass. 409. We are content to rest our decision upon this question on the reasoning of the learned justice who pronounced the opinion in that case.

Judgment reversed.

All the Justices concur, except Simmons, C. J., absent.