Opinion
14715.
MARCH 7, 1944. REHEARING DENIED MARCH 20, 1944.
Equitable petition. Before Judge Edwards. Madison superior court. August 7, 1943.
Shackelford Shackelford, for plaintiffs in error.
A. S. Skelton and J. T. Murray, contra.
The complainants as heirs at law filed suit against the administrator and other heirs to cancel certain deeds made by the intestate to the latter, on the ground that the maker was mentally incompetent at the time of their execution. The defendants filed a special plea, averring that the administrator had theretofore applied in the court of ordinary for leave to sell other lands of the deceased; that the plaintiffs in the instant suit had filed in that court a caveat to said application, and by an amendment had alleged that there was no necessity to sell, and further that in his lifetime the deceased had made to certain of his children deeds to certain portions of his property (the reference being to the same deeds sought to be canceled in the instant suit), which were intended as advancements, and had prayed the court of ordinary to appoint three or more freeholders to divide in kind the real estate owned by the intestate at the time of his death, and to require those to whom he had made conveyances to account for the land already given them, and to decree that they be not entitled to receive anything further until the caveators were made equal with them. The plea further alleged that all parties to the present suit had been made parties to the proceeding before the ordinary. The amended caveat was dismissed for want of prosecution. The allegations of the special plea were supported by proof. Held.
1. The position taken by the plaintiffs in the present suit and that taken by them in the court of ordinary were inconsistent. The remedy here pursued was based on their contention that the deeds were invalid and should be canceled; and their contention in the court of ordinary was that the deeds were valid, and that the grantees should account for the values of the conveyed property, as advancements.
2. Where a party considering himself aggrieved has two remedies by which he may enforce inconsistent rights growing out of the same transaction, and with knowledge of the facts, makes a choice of remedies and brings an action based on one of the methods available to him, he will not thereafter be allowed to adopt the alternate remedy for a suitor can not pursue a remedy inconsistent with such prior proceeding.
3. There need not be any adjudication of the plaintiffs' rights in the prior proceeding in order to make the defense of election of remedies available.
MARCH 7, 1944. REHEARING DENIED MARCH 20, 1944.
The plaintiffs in error (hereinafter called the plaintiffs) filed an equitable petition in Madison superior court against the defendants in error (hereinafter called defendants), and alleged as follows: That on June 22, 1939, S.E. Beard died intestate, survived by his widow, Mrs. Genie Collins Beard, and the following children: Nelson Beard, Janie Beard Carey, James Beard, John Beard, C. Reese Beard, Deupree Beard, Mrs. J. G. Gunnels, and two grand-children (the children of a deceased daughter), Dorris Hughes and Larry Hughes; that James Beard, one of the children of S.E. Beard, died on January 4, 1940, survived by his widow and nine named children. The plaintiffs are Nelson Beard, Janie Beard Carey, Dorris Hughes, and Larry Hughes by next friend J. R. Hughes, Donnie Sexton Beard, widow of James Beard, for herself and as next friend of the nine minor children of James Beard. The defendants are Mrs. Genie Collins Beard, John Beard, individually and as administrator of S.E. Beard, C. Reese Beard, Deupree Beard, and Mrs. J. G. Gunnels.
The petition further alleged that before his death, S.E. Beard executed and delivered to each of the following children, the defendants John Beard, C. Reese Beard, Deupree Beard, and Mrs. J. G. Gunnels, deeds to certain described lands; and that he executed and tendered to James Beard, Janie Carey, and Nelson Beard deeds to certain described lands, but that because of stated conditions these children declined to accept the deeds and they were never delivered. That John Beard was appointed administrator of S.E. Beard; that as administrator he applied to the court of ordinary for leave to sell the lands of his intestate, consisting of two tracts containing 102 acres and 26 acres, respectively, and being the same lands described in the undelivered deeds above referred to; that the plaintiffs contested the granting of the order for the sale of said lands, but that the court of ordinary passed an order allowing the sale.
It was further alleged that at the time S.E. Beard executed and delivered deeds to four of the defendants, conveying their lands he was mentally incompetent; that said deeds were procured as a result of a conspiracy between the defendants, and by the practice of fraud and undue influence over the said S.E. Beard. It was also alleged that the administrator, John Beard, had committed certain acts of devastavit, that his interests conflicted with those of the estate, and that he should be removed and a receiver appointed.
The prayers were: For cancellation of four deeds held by the defendants; for injunction; for removal of the administrator; and for appointment of a receiver.
The defendants filed demurrers, a plea in abatement, and pleas to the merits. The plea in abatement alleged an election of remedies by the plaintiffs, and that because of such election they were barred from bringing and maintaining the present suit. It alleged that the plaintiffs filed a caveat to the petition of the administrator in the court of ordinary for leave to sell the lands of his intestate, objecting to the granting of such leave; that by an amendment to the caveat in the nature of an equitable pleading all of the defendants were made parties; that the plaintiffs in said pleadings alleged there was no necessity to sell said lands; that S.E. Beard during his lifetime had made a division of his property which was satisfactory to all of his heirs at law, and before his death had given by way of advancements and conveyed to Mrs. Gunnels, John Beard, Deupree Beard, and C. Reese Beard, four of the defendants, certain described lands; that it was the intention of S.E. Beard for said four children to have no further interests in his lands; that at his death title to lands undisposed of descended to and vested in the caveators to the exclusion of other heirs at law; that said land should be divided into four equal shares according to value and divided in kind among the caveators; and that freeholders should be appointed to make the division in terms of the law.
The plea in abatement further alleged that the caveators had prayed for and obtained an order making all the defendants in the present case parties to the proceeding in the court of ordinary; that they had prayed for and sought in said court affirmative relief against said parties defendant, who are also parties defendant in this case; and that the defendants in this case are the same parties against whom relief was sought by the caveators in the court of ordinary; that the caveators in the court of ordinary and the plaintiffs in the present case are identical, except that one of the caveators, James R. Beard, died after the filing of said caveat and an amendment thereto, and his widow and children, who succeed to the rights and remedies and take the place of said James R. Beard, and who are bound by any election of remedies made by him in his lifetime in the enforcement of such rights, and can not now claim or enforce any right or remedy not available to James R. Beard were he living, are the plaintiffs in his stead in the present case; that the caveators in the court of ordinary, now plaintiffs in this case, by bringing said action in the court of ordinary, elected to pursue a remedy totally inconsistent with and repugnant to the remedy sought to be enforced in the present action, and having so elected, and having assumed such position, are estopped and barred from prosecuting the present action and from obtaining the relief sought therein. The plaintiffs demurred generally to the plea and moved to strike the same. To the denial of the motion, they excepted.
The case went to trial on the plea in abatement. On motion of counsel for John Beard, administrator of S.E. Beard, he was stricken as a party to the plea. After hearing evidence, the court directed a verdict sustaining the plea in abatement, and dismissed the action as to all parties defendant except John Beard, administrator of S.E. Beard. The plaintiffs filed a motion for new trial which was overruled, and they excepted.
The plaintiffs then filed an amendment to their original petition. To this amendment the defendants demurred on the following grounds, to wit: that no alleged facts were germane to any issue then pending in the case; that the amendment was offered too late; and that it sought to raise issues which had already been determined by a verdict of the jury on the plea in abatement. The demurrer was sustained and the amendment stricken. The defendant, John Beard, administrator of S.E. Beard, after the dismissal of the action on the plea in abatement as to all other defendants, renewed his demurrer to the petition. The court sustained the demurrer and dismissed the petition. The plaintiffs excepted.
This case involves the doctrine of election of remedies. An election of remedies has been defined as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts. See the authorities cited in 18 Am. Jur. 129, § 3. In the same text may be found this statement: "The doctrine is applicable where an aggrieved party has two remedies by which he may enforce inconsistent rights growing out of the same transaction and, being cognizant of his legal rights and of such facts as will enable him to make an intelligent choice, brings his action by one of the methods. Under such circumstances, the law says he shall not thereafter adopt the alternate remedy, for a suitor can not pursue a remedy inconsistent with such prior proceeding."
In order for the rule to be applicable, the remedies must be inconsistent. Our Code gives a plaintiff the right to pursue any number of consistent remedies even though they be concurrent, and even against different persons, until he obtains satisfaction from some of them. Code, § 3-114. "There is no inconsistency between different legal remedial rights, all of which are based upon a claim of title to property in the plaintiff, or all of which are based upon the affirmance of title in the defendant. But actions which proceed upon the theory that the title to property remains in the plaintiff are inconsistent with those which proceed upon the theory that title has passed to the defendant." Board of Education v. Day, 128 Ga. 156, 164 ( 57 S.E. 359). The instant suit being one to declare void and have canceled certain deeds from the intestate to the defendants, and the proceeding in the court of ordinary, to which all were made parties, being one where these plaintiffs sought to affirm the validity of these deeds and to make the grantees therein chargeable with the value of the conveyed property, and insisted that the conveyances should be treated as advancements, the two positions are directly opposite, and the remedies inconsistent.
The caveat filed by these plaintiffs in the court of ordinary was finally dismissed for want of prosecution, without a hearing on the merits. This court has more than once ruled that there need be no adjudication of the plaintiff's rights in the prior proceeding in order to make available the defense of election of remedies. If he chooses the position he will occupy, and appeals to the courts on one theory, that is an election of such remedy, and he can not thereafter maintain a suit to enforce the alternative remedy. Board of Education v. Day, 128 Ga. 167 (supra), and authorities there cited; McClellan v. McClellan, 135 Ga. 95 ( 68 S.E. 1025); Warner v. Hill, 153 Ga. 510, 513 ( 112 S.E. 478); Chapple v. Hight, 161 Ga. 629 ( 131 S.E. 505). See also Hardeman v. Ellis, 162 Ga. 664 ( 135 S.E. 195); Johnson v. Epting, 185 Ga. 667 ( 196 S.E. 413).
Since the prayer for a receiver was expressly abandoned, the only relief finally sought in the instant case was to have set aside and canceled the deeds to the defendants, there exhibited. The special plea averred, and the proof sustained the averments, that the administrator had filed in the court of ordinary an application to sell, for the purpose of paying debts, certain lands of the intestate other than those described in the deeds; and that in an amended caveat filed thereto, all the heirs at law being made parties, the present plaintiffs had taken the position in their caveat: (a) that the intestate left no debts; (b) that the personal estate was sufficient to pay funeral expenses; (c) that the intestate in his lifetime made to four of his children deeds to certain lands, reference being made to the deeds sought to be canceled in the present suit; (d) that it was the intention of the said S.E. Beard for his children mentioned in paragraph 4 of the amended caveat to have no interest in his lands other than that given to each of them, and that the value of the land each of them got far exceeded the distributive share he or she would have gotten had the said S.E. Beard not made provision for them by deeds before his death; (e) that the real estate owned by him at the time of his death should be divided into four equal shares according to value and divided in kind among the caveators, and to this end the court should deny the application of John Beard as administrator to sell, and should appoint in terms of the law, three or more freeholders in said county to make the division, and require the four children mentioned in said paragraph 4 of the amended caveat to account for the land already given them as advancements, and decree that they were not to receive anything further until the caveators should be made equal with them; and (f) that the jurisdiction and power of the court of ordinary is as broad as that of a court of equity in the settlement of an estate, and that the court should make those children mentioned in paragraph 4 parties, so that an equitable and fair distribution of the estate could be had.
In Rogers v. Dickey, 117 Ga. 819 ( 45 S.E. 71), this court ruled: "If it be to the interest of minors that property belonging to their father's estate should be distributed in kind instead of being sold, the guardian should file a caveat when the administrator applies for leave to sell for the purpose of paying debts and making distribution." In the opinion in that case it was said: "The Civil Code, § 3479, provides how an administrator may divide in kind; and when he applied for leave to sell for the purpose of paying debts and making a distribution, the guardian should then have interposed a caveat, if it was to the interest of his wards that there should be no sale." See also Kaiser v. Kaiser, 178 Ga. 355 ( 173 S.E. 688); Code, §§ 113-1013, 113-1016, 113-1019.
Upon application of the principles stated in the foregoing authorities, it must be held that this case was correctly disposed of by the trial judge. The assignments of error are without merit.
Judgment affirmed. All the Justices concur.