Phillipsv.Hightower

Supreme Court of GeorgiaSep 26, 1940
190 Ga. 785 (Ga. 1940)
190 Ga. 78510 S.E.2d 854

13414.

SEPTEMBER 26, 1940.

Equitable petition. Before Judge Worrill. Early superior court. April 3, 1940.

P. Z. Geer, and W. L. Stone, for plaintiff.

A. H. Gray, for defendant.


1. An equitable petition seeking to enjoin the exercise of a power of sale in a security deed, and cancellation thereof, which alleges in a single count that the secured indebtedness has been paid and that the defendant is estopped to deny such payment by a judgment in a former case between the parties, is not duplicitous.

2. Where a judgment rendered in former litigation between the parties on a different cause of action is relied upon as an estoppel, it is necessary to allege that the issue involved was actually made and determined in the former litigation. The allegations of the petition in the instant case relied upon to show an estoppel by judgment were sufficient to withstand a demurrer.

3. Since the auditor erred in sustaining demurrers to the major portions of the plaintiff's petition, and thereby erroneously removed from his consideration these portions of the case, the rulings on the demurrers rendered the further proceedings nugatory.

No. 13414. SEPTEMBER 26, 1940.


John Phillips filed a petition against Mrs. H. E. Hightower and A. H. Gray, seeking to enjoin the exercise of a power of sale contained in a security deed and to obtain cancellation of the deed and the note which it secured. A. H. Gray, the attorney who represented Mrs. Hightower in advertising the land for sale under the security deed, was later stricken as a party defendant. The petition contained the following allegations: The wife of the petitioner died seized and possessed of a certain farm in 1923, leaving petitioner as her sole heir at law. She died intestate, and there has been no administration of her estate. Mrs. Hightower is now advertising the farm which the plaintiff inherited from his wife, for sale under a security deed which she claims was transferred to her by the Bank of Kestler. The advertisement recites that this security deed was given to the Bank of Kestler by Mrs. Emma Phillips, petitioner's wife, to secure a note for $795.78, dated September 15, 1919, and due November 15, 1920. It also recites that the property will be sold on March 6, 1937, as the property of the estate of Mrs. Emma Phillips. The note and security deed have been fully paid. In January, 1935, Mrs. Hightower sued out a dispossessory warrant to evict the petitioner from the farm which he inherited from his wife. He thereupon filed a suit against Mrs. Hightower and the marshal into whose hands the warrant had been placed for execution, seeking, among other things, to enjoin them from executing the dispossessory warrant and from evicting him from the farm. After the defendants had filed an answer, that case came on for trial, and the jury returned a verdict in favor of the plaintiff. In pursuance of the verdict a decree was duly entered in his favor. On the trial of that case the note and security deed were introduced in evidence by Mrs. Hightower, and one of the issues in the case was whether or not this indebtedness had been paid. The judgment for the plaintiff in that case was therefore an adjudication that the note and security deed had been paid, and the defendant is now estopped by the judgment in that case from denying that the indebtedness secured by the deed has been fully paid.

A copy of the petition, answer, and decree in the former case are attached to the petition in the instant case. The allegations of the petition in the first case with reference to the manner in which the plaintiff obtained title to the farm were substantially the same as in the instant petition. The plaintiff alleged, that he had paid all debts owing by his wife; that H. E. Hightower, the husband and general agent of Mrs. Hightower, claimed that the plaintiff's wife died owing him or his wife quite a large debt, and the plaintiff paid whatever amount he could on this debt; that in 1925, at the behest of the Hightowers, an arrangement was entered into whereby the plaintiff turned his farm over to the Hightowers to work out the claimed debt of his wife; that they retained control and management of this farm under this arrangement for about seven years, and until the alleged debt was extinguished from profits realized by her from the operation of the farm; that during this time the plaintiff was employed by the defendant as overseer, and received a salary therefor; that after seven years the farm was turned back to the plaintiff and he went back on the land and farmed it in 1933 and 1934; that Mrs. Hightower is now claiming title to the land under a deed from the plaintiff which was obtained by fraud during the time she was in possession of the land; that on January 4, 1935, Mrs. Hightower sued out dispossessory proceedings against the plaintiff; that the plaintiff is not a tenant of Mrs. Hightower; and that he is the owner of the title to the farm. He prayed that the defendants be enjoined from executing the dispossessory proceedings and from evicting him from the land. Mrs. Hightower in her answer set up that she owned the title to the farm by a warranty deed from the plaintiff as heir of his deceased wife, dated November 8, 1928, and reciting a consideration of $1,000, which she paid to the plaintiff. She admitted that she had possession of the farm from 1928 to 1933, but alleged that she entered into possession and claimed title under the warranty deed from the plaintiff. She also alleged that the plaintiff obtained possession of the farm in 1933 as her tenant. The trial resulted in a verdict for the plaintiff, and the court decreed "that the defendants Mrs. H. E. Hightower and Carl Lanier [the marshal] are each perpetually restrained and enjoined from executing the dispossessory warrant referred to in the petition and from evicting the plaintiff or his tenant from the lands described."

By amendment the petitioner made additional allegations to two paragraphs of the original petition in the present case, and also added a new paragraph. He amended the paragraph of his petition in which he alleged that the note and security deed had been fully paid, by alleging that the note was usurious, that the defendant obtained the note and security deed after maturity, and that the payments therein described should therefore be credited on the principal amount of the note. The amendment alleged that approximately $2,000 had been received by the Bank of Kestler and Mrs. Hightower between 1925 and 1933, to be credited on the $795.78 note. The paragraph of the original petition alleging estoppel by judgment was amended by setting out certain testimony introduced upon the former trial. The material portions of this part of the amendment are as follows: "Upon the trial of said case the petitioner John Phillips testified: `At the time my wife died, Mrs. Minnie Hightower (Mrs. H. E. Hightower) did not claim a debt against her. I do not owe Mrs. Hightower a penny now.' For the purpose of controverting and taking issue with this testimony and other testimony hereinafter set out, the defendant . . introduced into evidence the note and security deed. . . W. R. Pullen, sworn as a witness for Mrs. H. E. Hightower, testified: `Mrs. Hightower, in order to get that deed (referring to an alleged warranty deed made to her on November 8, 1928), paid the Bank of Kestler the amount of the note and security deed in full, and the Bank of Kestler transferred that note and security deed to Mrs. Hightower. . . At the time the bank transferred it there was due the bank between seven or eight hundred dollars.' Hick Powell testified: `I am acquainted with what is known as the Rube Widener or Jordan place in Early County. I tried one time to trade for or buy that place from Little Nick Hightower (H. E. Hightower), — that was in the fall before he killed himself, in cotton picking time. He just told me that he could not sell it; that he was handling it for John Phillips. He said he had no right to sell it, that the place belonged to John. My recollection is he said that he (John Phillips) was in debt to him when he started and he had hired him and worked him out of debt.' . . Ivey Tabb testified: 'I knew Little Nick Hightower (H. E. Hightower) in his lifetime. I had a conversation with him in reference to the John Phillips or Widener place. Mr. Phillips was the overseer on the place, and we got to speaking about the place, and I asked him (Hightower) was John Phillips going to oversee for him another year, and he said he didn't know, that he (John Phillips) was out of debt and that he might go back home.'" In the new paragraph it was alleged that the transfer of the security deed from the Bank of Kestler to Mrs. Hightower, which was undated, was void because it was actually executed after January 19, 1935, at which time the assets of the Bank of Kestler were in the hands of the superintendent of banks for liquidation.

After the defendant had filed her answer and demurrers, the case was referred to an auditor, who heard the evidence and reported his findings of law and fact to the court. He made six findings of law in which he ruled on the defendant's grounds of demurrer. In these findings he sustained the demurrers based upon the following grounds: (1) The petition is duplicitous in that it declares upon two separate and distinct causes of action in a single count, that is, estoppel by judgment and payment. (2) The allegations of the petition are insufficient to show an estoppel by judgment. The auditor found in favor of the defendant on the facts. The plaintiff moved to recommit the case and filed exceptions of law and fact to the findings of the auditor. The defendant demurred to the exceptions of fact. The court overruled the motion to recommit, overruled the exceptions of law, sustained defendant's demurrer to the exceptions of fact, refused to approve the exceptions of fact, and entered a decree for the defendant. The plaintiff excepted.


1. The first question is whether the demurrer attacking the petition for duplicity was properly sustained. The petition sought to enjoin execution of a power of sale contained in a security deed, and cancellation of the deed and notes secured thereby. The amended petition, which contained but a single count, alleged that the indebtedness secured by the deed had been paid in full, and specified the mode and method of payment. It was also alleged that the question of payment had been an issue in a former case between the parties, that this issue had been determined in favor of the plaintiff, and that the judgment in the former case estopped the defendant from asserting that the indebtedness had not been paid. It is not insisted that the petition is duplicitous in the sense that it attempts to assert inconsistent theories for recovery of the relief sought, or that the allegations are in themselves contradictory, but that the count is double in that it contains two grounds of action to enforce a single demand. In Orr v. Cooledge, 117 Ga. 195, 205 ( 43 S.E. 527), quoting from 7 Enc. Pl. Pr. 237, it was said: "A declaration is duplicitous when it contains in the same count more than one fact, or set of facts, for the recovery of a single demand, any one of which would justify the recovery." In Groover v. Savannah Bank Trust Co., 186 Ga. 476, 478 ( 198 S.E. 217), it was stated: "Duplicity may also be defined as joining in the same count two or more distinct demands, consistent or inconsistent, any one of which would authorize a recovery." The quoted definitions are relied on as supporting the demurrer. However, they should not be taken to mean that the mere diversity of facts set up in a count will render it double when all the facts taken together tend to the statement of one point or ground of recovery. For instance, in the instant case, if the security deed had been void for a number of reasons, it would not have rendered the petition duplicitous to state all of these reasons in the same count. See Chamblee v. Atlanta Brewing Ice Co., 131 Ga. 554, 563 ( 62 S.E. 1032); Echols v. Green, 140 Ga. 678 (4) ( 79 S.E. 557); Bridges v. Donalson, 165 Ga. 228 ( 140 S.E. 497); Smith v. McWhorter, 173 Ga. 255 (3) ( 160 S.E. 250). The instant petition was demurred to because it alleged payment of the indebtedness and estoppel by judgment to deny such payment. These allegations merely amounted to the assertion of one thing, payment. Such allegations constituted only a single "set of facts" for recovery of the relief sought. It was therefore error to sustain the demurrer on the ground that the petition was duplicitous.

2. Did the petition allege sufficient facts to show an estoppel by judgment? The parties to the two cases are the same, with the exception of a nominal party to the first case. However, the two cases are not based upon the same cause of action. In the case relied upon as an estoppel the plaintiff sought to enjoin the defendant from evicting him from the land under a dispossessory warrant. In the present case he seeks to enjoin a sale of the land under a security deed. "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 actually made and determined in the former litigation." Worth v. Carmichael, 114 Ga. 699 ( 40 S.E. 797); Draper v. Medlock, 122 Ga. 234 ( 50 S.E. 113, 69 L.R.A. 483, 2 Ann. Cas. 650). The burden is on the one asserting the estoppel to show that the issue was actually made and determined in the former case. It appears from the pleadings in the first case, which are attached to the petition in the instant case, that the defendant claimed title to the land under a warranty deed to her, alleged to have been executed by the plaintiff in 1928. She claimed to have obtained possession of the land under the warranty deed, and to have rented it to the plaintiff in 1933. The plaintiff asserted that the warranty deed was either a forgery or was void because it was fraudulently obtained, and claimed title in himself. It is apparent that the chief issue in that case was whether or not the defendant's warranty deed was valid. Under the pleadings the verdict and decree in favor of the plaintiff was necessarily a finding against the validity of the warranty deed. See Hightower v. Phillips, 184 Ga. 532 ( 192 S.E. 26). The plaintiff alleges in the present suit that it was also determined in the first suit that the indebtedness secured by the security deed had been fully paid. This security deed was executed by Mrs. Emma Phillips, the wife of the plaintiff, to the Bank of Kestler, in 1919. Mrs. Phillips died intestate in 1923, leaving the plaintiff as her sole heir. There was no administration of her estate, but the plaintiff alleged that he had paid all of her debts, and claimed title by inheritance from his wife. The defendant introduced in evidence on the first trial the security deed from the plaintiff's wife to the Bank of Kestler, which she claimed to have paid in 1928 as part of the consideration of the warranty deed to her.

The plaintiff in error contends that the fact that defendant held a security deed would have been sufficient to demand a verdict for the defendant in the first case, unless the jury found that the debt had been paid. This contention is based upon the theory that the defendant would have been entitled to maintain an ejectment suit to evict the plaintiff under her security-deed title if the past-due indebtedness had not been paid. However, under the pleadings in the case, the mere introduction of the security deed and notes in evidence for the purpose of showing the consideration of the alleged warranty deed was not in itself sufficient to bring in issue the question of the defendant's rights under the security deed. If the question of payment was presented and determined in the first case, it was by reason of the allegations and proof with reference to the arrangement whereby the plaintiff turned the farm over to the holder of the security deed to work out the debt. The plaintiff alleged in his petition in the first case that after his wife's death the defendant's husband claimed quite a large debt against her for himself or his wife, and that in order to pay this debt he entered into an arrangement with the Hightowers for them to take the farm and collect the rents; and that they retained control and management of this farm under this arrangement for about seven years, and until the alleged debt was extinguished from profits realized from the operation of the farm. This debt is alleged to be the debt secured by the security deed now sought to be enjoined and canceled. Thus, in effect, the plaintiff admitted that the farm had been turned over to the defendant to work out the debt, and that she was entitled to possession of the land until the debt was satisfied. He asserted that he regained possession of the land after the debt was satisfied. The defendant admitted that she had possession of the farm from the date of her warranty deed in 1928, and alleged that she had rented it to the plaintiff in 1933. It appears that the plaintiff had by his pleadings shown that he was not entitled to an injunction unless the indebtedness for which he had turned the farm over to the defendant had been paid. It thus became necessary for him to prove payment of the debt. The petition in the instant case contains excerpts from the testimony tending to show that the plaintiff did attempt to prove that the farm was turned back to him as the result of the satisfaction of the debt. In view of the plaintiff's admission that he was not entitled to possession of the farm unless the debt had been paid, the jury could not have rendered a verdict for the plaintiff without passing upon the question of payment. The allegations of the petition in the present case were therefore sufficient to allege an estoppel by judgment on the question of payment, and it was error to sustain a demurrer to this portion of the petition. For the reasons stated in this and the preceding division of the opinion, the court erred in overruling the plaintiff's exceptions to the auditor's findings of law.

3. Since the erroneous rulings of the auditor upon the pleadings had the effect of denying the plaintiff the right of attempting to prove the major portions of his case, they rendered the further proceedings before him nugatory. Therefore this court will make no ruling upon the other assignments of error.

Judgment reversed. All the Justices concur.