Opinion
13024.
OCTOBER 11, 1939. REHEARING DENIED NOVEMBER 17, 1939.
Equitable petition. Before Judge Knox. Appling superior court. July 8, 1939.
M. E. Wood and Blalock Blalock, for plaintiffs.
J. B. Moore and Highsmith Highsmith, for defendant.
1. The superior court has inherent power to correct all alterations in its records and office papers, which include all pleadings filed therein. And when, as in the instant case, by order of that court alterations made in the plaintiffs' petition before copies thereof were certified and transmitted to this court are corrected, and the clerk at the direction of that court transmits certified copies of the petition as thus corrected, such corrected petition is the true record; and the copy of the altered record will not be considered by the Supreme Court.
2. The allegations of the amendment being in irreconcilable conflict with allegations of the original petition, and no attempt being made to strike such conflicting allegations from the petition, the amendment was properly disallowed. Also, an amendment to the prayers seeking to engraft a parol trust agreement upon an absolute deed was properly disallowed.
3. Where a purchaser of land from one in possession, who holds a deed thereto which is absolute on its face, has paid the purchase-price and taken possession, parties claiming an equity therein of which the purchaser had no notice are not entitled to have purchaser's deed canceled. And where one purchased land at an administrator's sale duly authorized by order of the court of ordinary, which land was in the possession of such administrator, his deed will not be canceled on the petition of parties claiming an equitable title to such land, of which equity the purchaser had no notice.
4. Where plaintiffs rely upon express trust agreements in an action to recover land, and fail to set forth copies of such agreements in response to demurrer calling for them, the demurrer should be sustained.
5. Where all allegations in a suit to remove an administrator and to have a court of equity take charge of and administer an estate show that the court of ordinary, which has taken charge of administering the estate, can give full, complete, and adequate relief on each complaint, the petition alleges no cause of action and must be dismissed on demurrer.
No. 13024. OCTOBER 11, 1939. REHEARING DENIED NOVEMBER 17, 1939.
The plaintiffs sued E. P. Carter, individually and as administrator of the estate of V. A. Carter, and L. W. Eason, alleging in substance as follows: The plaintiffs are two of the four heirs at law of V. A. Carter. Upon written request by them and the other heirs, E. P. Carter, a brother of the intestate, was appointed administrator of the estate of V. A. Carter on November 7, 1938. He took the official oath and gave bond, and so qualified. Several years before his death V. A. Carter became heavily indebted by indorsement and otherwise; and fearing that his property might be sold to pay such indebtedness, in an effort to protect himself and his property until such time as he might be able to raise the money to pay the indebtedness, he entered into an agreement with E. P. Carter, and on September 24, 1932, executed to him a deed conveying 100 acres of land in the northeast corner of lot 367 of Appling County, Georgia, and 75 head of stock cattle, the deed being made upon an expressed consideration of $100, but no consideration was actually paid, and the conveyance was made solely for the purposes set out above; and it was made upon the express agreement and understanding between the parties thereto that upon the death of the grantor the grantee would immediately execute and deliver to each of the petitioners and their sister a one-third undivided interest in said land; and it was agreed and understood between the parties that the property was to be held in trust by the grantee for the children of the grantor, and that the grantor should continue to live thereon and receive the proceeds thereof during his life. V. A. Carter, being in bad health and realizing that he could not live much longer, talked with all of his heirs and with E. P. Carter, discussing with each of them the manner in which he desired his property to be distributed at his death, and on October 23, 1937, he executed and delivered to E. P. Carter a warranty deed conveying a described 100-acre tract of land on lot 366 of the third district of Appling County; this deed being executed with the express agreement and understanding that immediately upon the death of the grantor the grantee would execute and deliver to each of the petitioners and their sister an undivided one-third interest in said tract of land. On February 4, 1939, E. P. Carter, in violation of said trust, sold and conveyed said property to L. W. Eason by warranty deed reciting a consideration of $700, without the knowledge and consent of petitioners and their sister; and such deed is a cloud upon the rights and title of petitioners, and should be canceled by judgment of the court.
It was further alleged: E. P. Carter as administrator obtained an order from the court of ordinary to sell 100 acres of lot 367 of Appling County, known as the Albert place, and on April 4, 1939, pursuant to the order and leave to sell, did sell and convey said land to L. W. Eason, and, as petitioners are informed and believe, received therefor $700 or more, although his return reporting the sale to the court of ordinary shows that he received only $200. He had no right to sell said land, for the reason that V. A. Carter during his lifetime sold the same to Gilbert Bell for $1000, six hundred dollars of which was paid to V. A. Carter, who had agreed to make Bell a warranty deed when the balance of the purchase-money was paid. E. P. Carter fraudulently represented to the court of ordinary the value of the estate as $400, when it was actually worth $3000 to $3500, and by such false representation procured the approval of the court of ordinary of his administrator's bond of $1000, which is wholly inadequate. E. P. Carter as administrator failed to make an inventory and have an appraisal made of the assets of the estate. He carried to his home in Florida certain personal property belonging to the estate, and either sold or converted to his own use all of the personal property of the estate; and he was unfit to represent the estate and had personal interests that conflicted with the best interests of the estate. Immediately upon his taking the oath and qualifying as administrator he took possession of all the real and personal property belonging to the estate of V. A. Carter, and has retained possession thereof ever since; and he and L. W. Eason have turpentined some timber on land of the estate, and should be required to account for its value. The prayers were, for injunction restraining E. P. Carter from further acting as administrator, and restraining both defendants from encumbering or conveying the lands described in the petition; that the court take charge of and administer the estate; that the administrator be required to pay into the court, or to some one by the court designated, all moneys held by him and belonging to the estate; for an accounting; for cancellation of the deeds from E. P. Carter to L. W. Eason; for temporary injunction; for judgment against E. P. Carter, for the benefit of the plaintiffs and of the estate, for all moneys and property received by him as administrator; for judgment decreeing title to a one-third undivided interest in the two tracts of land conveyed to Eason to be in each of the petitioners and their sister Marie Kingsberry; and for general relief.
Defendants filed general demurrers to the petition, on the ground that no cause of action was alleged. Carter as an individual and as administrator filed special demurrers, among which were attacks upon the allegations of trust agreements on the ground that copies of the alleged agreements were not attached to said paragraphs. The plaintiffs offered an amendment seeking to add to the petition three paragraphs, alleging: (1) That each of the deeds executed by V. A. Carter to E. P. Carter was made under a specific agreement and arrangement that E. P. Carter would put the property up as collateral to borrow money with which to pay the debts of V. A. Carter, with the provision that if the property was not used for this purpose it should be conveyed in conformity with the trust agreements alleged in the original petition. (2) That at the time of the death of V. A. Carter the petitioners were living upon and working the property; that they immediately began claiming the land as theirs under the agreement between their father and E. P. Carter, and continued to live upon, remain in possession of, and claim said property at the time defendant Eason purchased the same; and that Eason knew said facts, or by diligence could have learned them. (3) A prayer that each of the deeds from V. A. Carter to E. P. Carter be reformed by adding thereto the alleged trust agreements. This amendment was disallowed. The petitioners excepted to that ruling, and to the sustaining of the demurrers.
The original transcript of the record showed that paragraph 15 of the petition was in part as follows: "Petitioners further show, that, immediately after being appointed as such administrator and after taking the oath, the said E. P. Carter, as such administrator, undertook to take possession and control of all the real estate, as well as of the personal property, belonging to the estate of said V. A. Carter, and also of the 100-acre tract of land which had prior thereto been sold to Gilbert Bell." A supplemental certificate of the clerk of the trial court recites: "I, G. B. Eason, clerk of the superior court of Appling County, Georgia, do hereby certify that the following is a true and correct copy of the 15th paragraph of the original petition in the above-stated case: `Petitioners further show, that, immediately after being appointed as such administrator and after taking the oath, the said E. P. Carter, as such administrator, took possession and control of all of the real estate, as well as of the personal property, belonging to the estate of said V. A. Carter, and also the 100-acre tract of land which had prior thereto been sold to Gilbert Bell.'" This last certificate recited that it was made pursuant to an order of the trial judge, adjudging that paragraph 15 of the petition read as then certified when filed in court and when the judgment excepted to was rendered. In this certificate was set out a petition by the defendants to the trial court, alleging that after the judgment of the trial court and before the transmission of the record to this court, without the knowledge of the clerk or defendants, an alteration had been made in paragraph 15 of the original petition, by striking the word "took" and inserting in lieu thereof the words "undertook to take;" and praying that the plaintiffs be required to show cause why the court should not enter judgment striking the alleged inserted words and inserting the word "took" as it originally appeared, so that the petition would read as it did when originally filed and when passed upon, and that when so corrected the clerk be required to certify and send to this court a correct copy of the true and correct petition passed upon by the trial court. The certificate recites that a rule nisi was issued and served upon the petitioners, and a hearing held, after which the judge ordered the correction of paragraph 15 of the petition as prayed, and the clerk was directed to send to this court his supplemental certificate certifying this corrected copy of paragraph 15, which the clerk did in a second certificate.
1. A preliminary question regarding the transcribed record, which affects the other questions presented, will first be decided. There are in the record two certificates by the clerk of the trial court. The record certified is materially different in the two certificates. This involves two questions, to wit: (1) Did the trial court have the right to correct the record which had been altered? (2) Could that court require its clerk to certify the corrected record after a certified copy of the record had been transmitted to this court? The first question must be answered in the affirmative. The record involved remains permanently of file in that court; only copies of same can be sent to this court on appeal. It is therefore an office paper of the trial court. Clark v. State, 110 Ga. 911 ( 36 S.E. 297). In Ellis v. Clarke, 173 Ga. 618 (2) ( 160 S.E. 780), it was declared: "The superior court is vested with inherent power to correct errors and mistakes in its records. The judge of the city court of Atlanta did not err in admitting in evidence the certified copy of the amended minutes of the superior court." And in Grand Chapter Eastern Star v. Wolfe, 175 Ga. 867 (4) ( 166 S.E. 755), this court said: "The superior court is invested with inherent power to correct errors and mistakes in its records." See also Code, § 24-104 (6). A court whose sole purpose is to deal fairly and do justice to all parties can accomplish this purpose only by acting upon true and correct records; and where errors or mistakes are found in its records, whether they be honest mistakes or deliberate alterations, the court in the exercise of its inherent power can and should correct all such records. The second question likewise must be answered affirmatively. The trial court has the power to require its clerk to comply with its orders. In approving the bill of exceptions the judge ordered the clerk to certify and transmit to this court copies of the pleadings which included paragraph 15 of the petition. When it was brought to the court's attention by the defendants' petition that the clerk had not complied with this order, and, after notice to the opposite parties and a hearing, the judge found that the clerk, instead of sending a copy of the true petition, had certified to this court a copy of an untrue and altered petition, and directed him to certify and transmit a copy of what the court found to be the true and correct petition, compliance with this order was necessary in order for the clerk to render obedience to the first order of the court. What is said here in no wise conflicts with the rule that when the judge signs a bill of exceptions he divests himself of all jurisdiction in that case. Perry v. Central Railroad, 74 Ga. 411 (3); Walker v. State, 153 Ga. 212 ( 111 S.E. 657). He never loses jurisdiction of the office papers and the officers of that court. He did not go beyond that jurisdiction in the present case in correcting the office papers of his court and requiring obedience to his order approving the bill of exceptions on the part of the clerk of his court. This court held in Clark v. State, supra, that the supreme court could do nothing to correct an alteration in the original record which was made before copies of same were certified to this court, but said: "The determination of that fact rests alone with the trial court." Hence, if this court can not correct such altered record, are we to allow the trial court to correct it? Or are we to stand impotent before such altered record, and go through the pretense of reviewing a judgment of the lower court on a record which that court says is untrue and on which it has rendered no judgment? By such procedure no error would be corrected, and a known error would be allowed to stand. Such a rule would license the unscrupulous so to alter records of the trial court that justice would be impossible, and the courts would thereby unwittingly become the instrumentalities through which justice is denied and dishonesty rewarded. The corrected record as certified in the second certificate of the clerk is accepted by this court as the record in the case.
2. The first two paragraphs of the offered amendment contained allegations that were in direct conflict with allegations in the original petition, and as to these paragraphs the judgment disallowing the amendment was not erroneous. Girvin v. Georgia Veneer Package Co., 143 Ga. 762 (5) ( 85 S.E. 922); Cooper v. Oglethorpe Savings Trust Co., 147 Ga. 570 (4) ( 94 S.E. 1006); Jones v. Robinson, 172 Ga. 746 (3) ( 158 S.E. 752). By the third paragraph it was sought to amend the prayer by adding the further prayer that the deeds therein referred to be reformed by engrafting thereon the alleged verbal trust agreements. An express trust can not be engrafted on a deed by parol. Wilder v. Wilder, 138 Ga. 573 (2) ( 75 S.E. 654); DeLoach v. Jefferson, 142 Ga. 436 ( 83 S.E. 122); Roach v. Roach, 143 Ga. 486 ( 85 S.E. 703); Bentley v. Young, 147 Ga. 373 ( 94 S.E. 221); Durrett v. McWhorter, 161 Ga. 179 ( 129 S.E. 870); Parlin v. McClure, 169 Ga. 576 ( 150 S.E. 835); Shaprio v. Steinberg, 175 Ga. 869 ( 166 S.E. 767). The amendment was properly disallowed.
3. Did the petition allege a cause of action against Eason? There are no allegations showing that Eason knew of the claims of petitioners, or had notice of any facts or circumstances that if investigated would have led to knowledge of such claims. The petition shows that this defendant paid for each of the tracts of land and received deeds thereto. In this situation this defendant was an innocent purchaser for value and without notice. As such he is protected by law. Code, § 37-111. Cf. Webster v. Black, 142 Ga. 806 (3) ( 83 S.E. 941); Wood v. Bowden, 182 Ga. 329 ( 185 S.E. 516). As to one of the tracts of land involved, the allegations show that the purchase was made by this defendant at an administrator's sale without any irregularity and pursuant to an order of the court of ordinary authorizing the same; and the petition further shows that this tract of land belonged to Gilbert Bell, and that petitioners had no interest therein. Such allegations failed to state a cause of action against this defendant, and the action was properly dismissed as to him.
4. The question whether the petition alleged a cause of action against E. P. Carter individually is determined by whether or not the deeds from V. A. Carter to E. P. Carter were trust deeds imposing a duty upon E. P. Carter to convey, at the death of V. A. Carter, all the lands therein to the petitioners and their sister. The petition alleges that each of these conveyances was made upon the express agreement and understanding that the grantee should hold the property in trust for the three daughters of the grantor, and at his death convey the same to said daughters. An express trust is therefore alleged; and the petition can not be construed as alleging an implied trust as contended by plaintiffs in their brief. Code, § 108-104; Eaton v. Barnes, 121 Ga. 548 ( 49 S.E. 593). The case of Jansen v. Jansen, 180 Ga. 318 ( 178 S.E. 654), is clearly distinguished on its facts from the case above cited. All express trusts are required to be in writing. Code, § 108-105. The petition need not allege that the trust was in writing, and is not subject to demurrer because failing to make such allegation. Eaton v. Barnes, supra. In the Eaton case, the petitioners alleged that their father conveyed to the defendant by deed absolute on its face the lands involved with the express understanding that at the death of the grantor the defendant would sell the lands, retain $375 of the proceeds, and divide the balance equally among petitioners. A reading of the opinion clearly discloses that the ruling of this court that the petition was not subject to demurrer was based upon the idea that it was not subject to demurrer on the ground that it failed to allege that the trust agreement was in writing. It was said: "From the trend of the argument of counsel here, the trial judge evidently sustained the demurrer upon the ground that the trust was an express one and could not be established by parol. As to whether the petitioners intend to rely solely upon parol evidence, we are not informed. So far as the pleadings disclose, they may have writings which will be competent evidence to make out their case upon this point. They do not have to allege how they expect to prove their case. Upon demurrer it must be presumed, where the contrary does not appear, that the proof will be such as is required under the statute of frauds. The trial judge, therefore, erred in sustaining the demurrer." We have quoted from that opinion to demonstrate that there was no ruling to the effect that the petitioners should not by demurrer be required to include in the petition or attach thereto a copy of the alleged trust agreement upon which they sought to recover. While the record in this court reveals that the point was raised by a demurrer, yet, in view of the fact that this court made no ruling thereon, it must be presumed that it was abandoned by the plaintiffs or otherwise withdrawn from consideration of this court. As early as Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689, 694 (3), this court, in ruling on this same question, said: "The special demurrer to the complainant's bill, because it did not set forth the agreement referred to therein, for blasting out opposite lots eleven and twelve, for which the complainant claims damages, should have been sustained. The agreement should have been set forth or attached to the bill as an exhibit, so as to enable the court to judge of the legal effect thereof as to the defendant's liability thereon to the complaint, as claimed by it." While in Lyons v. Planters' Loan Savings Bank, 86 Ga. 485 (6) ( 12 S.E. 882, 12 L.R.A. 155), it was declared that this rule might have been altered by the uniformity of pleading act of 1887, still no ruling to that effect was made; and although this court there held that certain records need not be attached, it stated: "It may be that under the new act, there ought to be some degree of conformity to the rule in pleading all material records and documents referred to in the petition. But where a case has had a right result in the court below on the merits, we do not feel called upon to reverse the judgment simply because that court may have been too liberal to one of the parties, in dispensing with the formality of annexing exhibits to the pleadings." Thus it is seen that nothing ruled in that case changed the rule. Our present Code, § 81-105, declares that "Copies of contracts, obligations to pay, or other writings should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon." The language of the statute does not permit of a construction that in some cases in which the writing constitutes the cause of action, or the relief prayed for must be based thereon, copies must be incorporated in or attached to the petition; for it uses the words "in all cases." Therefore, if the present case involves a writing that constitutes the cause of action, or the relief prayed for must be based thereon, the rule applies, and it was proper to sustain the demurrer on the ground that the agreement was not incorporated in or attached to the petition. There is no question that petitioners' whole cause of action and the sole basis upon which they sought relief was the alleged trust agreement. It follows that the demurrer should have been sustained, and the paragraphs alleging the agreements stricken; and when this was done, the petition alleging no cause of action against this defendant was properly dismissed on general demurrer.
5. The allegations against E. P. Carter as administrator included one that his bond was inadequate. There is a clear legal remedy for this complaint, by application to the court of ordinary as provided by the Code, § 113-1229. It is alleged that he has filed no inventory and had no appraisal made, as required by law; and these matters too can be presented to the court of ordinary and adequate relief there obtained. Code, §§ 113-1229, 113-1408. It is alleged that this defendant is mismanaging the estate and is removing and disposing of the personal property belonging to the estate; and upon these grounds petitioners seek to have him removed by a court of equity. None of these allegations constitutes ground for equitable relief, and petitioners have an adequate remedy in the court of ordinary. While equity has concurrent jurisdiction with the court of ordinary on administration of estates (Code, § 113-2203), this does not mean that courts of equity will interfere with the regular administration of estates by assuming jurisdiction of matters that the court of ordinary has adequate authority to handle. Code, § 37-403; Gaines v. Gaines, 171 Ga. 169 ( 154 S.E. 883); Darby v. Green, 174 Ga. 146 (3) ( 162 S.E. 493); Caswell v. Caswell, 177 Ga. 153 ( 169 S.E. 748); Brooks v. Brooks, 184 Ga. 872 ( 193 S.E. 893). The petition alleged no cause of action against this defendant, and was properly dismissed on demurrer.
Judgment affirmed. All the Justices concur.