Opinion
14140.
JULY 15, 1942.
Equitable petition. Before Judge Pratt. Gwinnett superior court. January 31, 1942.
Joseph E. Buffington and Noah J. Stone, for plaintiffs.
W. L. Nix and D. B. Phillips, for defendants.
1. Where under a power of sale in a security deed the grantee in case of default was authorized, on compliance with certain conditions, to sell the land described in the deed to the highest bidder "for cash," and the sale was duly advertised and auctioned on that basis, the sale was not rendered invalid by a subsequent arrangement between such grantee and the highest bidder, not the result of any previous agreement or understanding, whereby a note of the latter was accepted in lieu of cash, but the grantee would be accountable for the note as cash in settling with the debtor. Code § 37-607; Willbanks v. Untriner, 98 Ga. 801 (5) ( 25 S.E. 841).
2. "Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon." Code, § 85-201. This provision was contained in the Code of 1863 as section 2197, and has appeared in each of the subsequent Codes.
( a) "All crops, matured or unmatured, are declared to be personalty." Code, § 85-1901; Ga. Laws 1922, p. 114. This law as codified from the act of 1922 refers to crops that mature, and does not include a nursery or nursery stock attached to and growing in the soil. As to "crops" under the former law, see Newton County v. Boyd, 148 Ga. 761 ( 98 S.E. 347); Williams v. Mitchem, 151 Ga. 227 (4) ( 106 S.E. 284). For decisions based on the act of 1922, see Chatham Chemical Co. v. Vidalia Chemical Co., 163 Ga. 276 ( 136 S.E. 62); Penn Mutual Life Insurance Co. v. Larsen, 178 Ga. 255 (2) ( 173 S.E. 125).
( b) "The word `crops' includes and embraces the fruits and products of all plants, trees, and shrubs." Code, § 85-1902; Ga. Laws, 1933, p. 128. Properly construed, this law as codified from the act of 1933 does not affect the "plants, trees, and shrubs" themselves, but applies only to fruit and products in the nature of fruit derived from such plants, trees, and shrubs. Accordingly, neither would this statute embrace as personalty a nursery or nursery stock consisting of plants, trees, and shrubs, attached to and growing in the soil. As to construction, compare Standard Oil Co. v. Swanson, 121 Ga. 412 ( 49 S.E. 262).
( c) The decision in Miller v. Jackson, 190 Ga. 668 ( 10 S.E.2d 35), involved the fruit or product of trees (pecan nuts), and is therefore distinguished by its facts from the instant case.
3. Under the preceding rulings, the nursery and nursery stock in controversy, though placed upon the land by the grantor after executing the security deed, are to be treated as a part of the realty under the Code, § 85-201, supra, as between such grantor and a purchaser at the sale under the security deed, and the sale having been lawfully made in accordance with the power, the interest of the grantor was terminated thereby. See in this connection, Brigham v. Overstreet, 128 Ga. 447 (5) ( 57 S.E. 484, 10 L.R.A. (N.S.) 452, 11 Ann. Cas. 75); Evans Marketing Agency v. Federated Growers Credit Corporation, 175 Ga. 294, 301 ( 165 S.E. 114); Hix v. Williams, 42 Ga. App. 143 ( 155 S.E. 355); Pridgen v. Murphy, 44 Ga. App. 147 ( 160 S.E. 701); Currin v. Mihollin, 53 Ga. App. 270 (3) ( 185 S.E. 380); Batterman v. Albright, 122 N.Y. 484 ( 25 N.E. 856, 11 L.R.A. 800, 19 Am. St. R. 510).
( a) No decision is made as to what should be the rule as between parties occupying the relation of landlord and tenant, or other relation different from that appearing in this record. On the general subject, see Chason v. O'Neal, 158 Ga. 725 ( 124 S.E. 519); Bingham v. Haines, 25 Ga. App. 136 ( 102 S.E. 923); Story v. Christin, 14 Cal.2d 592 ( 95 P.2d 925, 125 A.L.R. 1402, note).
4. In such case, where the grantor himself instituted a suit in equity against the purchaser at the sale under the security deed and others, to restrain such purchaser from entering into possession, on the alleged ground that the sale had not been "for cash," and from taking possession of the nursery stock, on the ground that it was personalty and did not go with the land, and the purchaser filed an answer and a cross-action, seeking injunction against the plaintiff to prevent him from removing the shrubbery and nursery stock, from interfering with the purchaser's "right of possession of said property and premises," and "from occupying the dwelling located on said premises," the cross-action was not subject to demurrer on the ground that it showed no right or title in the complainant therein as to such shrubbery and nursery stock.
( a) Even if the cross-action in asking, as in prayer 3, that the plaintiff be enjoined from "occupying the dwelling on said premises" may have sought a mandatory injunction in violation of the Code, § 55-110, the only injunction actually granted was a general decree enjoining the plaintiff from interfering with the defendant "in her quiet and peaceable possession of the said nursery or the premises on which the same is located;" and the injunction thus granted being merely incidental to other relief sought, and therefore permissible under the pleadings and the evidence, the overruling of the demurrer to prayer 3, if originally erroneous, was rendered harmless by the subsequent proceedings. See, in this connection, Code, § 37-105; Goodrich v. Georgia Railroad Banking Co., 115 Ga. 340 ( 41 S.E. 659); Baxter v. Camp, 126 Ga. 354 ( 54 S.E. 1036); Georgia Southwestern Gulf Railroad Co. v. Georgia-Alabama Power Co., 152 Ga. 172, 174 ( 108 S.E. 521); English v. Little, 164 Ga. 805 (5) ( 139 S.E. 678); Denson v. Tarver, 186 Ga. 180, 182 ( 197 S.E. 242); Jacobs v. Rittenbaum, 193 Ga. 838 ( 20 S.E.2d 425).
( b) There was no merit in other grounds of the demurrer to the cross-action.
5. Under the foregoing rulings, the court did not err in overruling the demurrer to the cross-action, or in directing the verdict in favor of the complainant therein. For convenience, parties have been generally referred to in the singular, although there were two grantors and two grantees in the security deed, and a plurality of both plaintiffs and defendants.
Judgment affirmed. All the Justices concur.
No. 14140. JULY 15, 1942.
W. M. Adcock, and Jane A. Medlock as guardian of R. A. Medlock, filed an equitable petition in the superior court of Gwinnett County against W. C. Berry Sr., Mrs. W. C. Berry Sr., and Mrs. Dorothy Davidson, alleging substantially the following: On January 2, 1939, R. A. Medlock and W. M. Adcock purchased from Mr. and Mrs. W. C. Berry Sr. a described tract of land in Gwinnett County, and to secure a balance of the purchase-money executed to the sellers a security deed with power of sale. The plaintiffs having defaulted in payment of the debt secured by said deed, the grantees therein advertised the property for sale for cash, as provided in the security deed, and sold the same to Mrs. Dorothy Davidson for $3500. The sale to Mrs. Davidson was not for cash as provided in the security deed, but was for part cash and the balance in notes. Mr. and Mrs. Berry and Mrs. Davidson were parties to a scheme, collusion, and fraud, to deprive petitioners of their rights. The sale to Mrs. Davidson is void, because (1) the property was not sold for cash as provided for in the purchase-money security deed and advertisement, and as provided by law; (2) the sale did not conform to the powers in the security deed and advertisement, and did not divest title; (3) the powers contained in the security deed were not fairly exercised, and deprived petitioners of their rights. They prayed, that the defendants Berry be enjoined from executing to the defendant Mrs. Davidson a deed to the property in question, and from disposing of the notes and deed given them by Mrs. Davidson; that Mrs. Davidson be enjoined from disposing of the described property and from taking possession thereof and from changing the status; and that all the defendants be enjoined from interfering with W. M. Adcock's possession of said property.
Mr. and Mrs. Berry filed a joint answer, and Mrs. Davidson answered separately, each answer denying that there was any fraud or collusion in the sale, and asserting that said property was advertised for sale, and was sold before the court-house door on the first Tuesday in February, 1941; that petitioners were present and had ample opportunity to purchase said property; that they failed to offer a bona fide bid on the date of said sale; and that the property was sold to the highest bidder. The allegations of the petition as to the terms of payment by Mrs. Davidson were "denied as alleged."
Mrs. Davidson, by way of cross-action, further alleged: (3) W. C. Berry "announced at the time of the sale that he was going to sell a tract of land, and a dwelling located thereon, together with about eight acres of shrubbery on said premises;" (4) defendant was the successful bidder, and on February 4, 1941, Mr. and Mrs. Berry executed and delivered to her a warranty deed to the property described in plaintiffs' petition, and she now has legal title and the right of possession of said property; (5) the plaintiffs are now in possession of the premises and have failed and refused to deliver possession to this defendant, and W. M. Adcock is occupying the dwelling and has failed and refused to vacate the same; (6) there is located on the property valuable shrubbery, which is now the property of this defendant, and of which she is entitled to have full and complete control; (7) the plaintiffs have threatened to and are removing said shrubbery from said premises, and will do so unless enjoined. She also averred that the plaintiffs were insolvent, and that she would suffer irreparable damage unless the plaintiffs were enjoined from interfering with her right of possession of the premises. She prayed that the plaintiffs be restrained and enjoined from removing any of said shrubbery, and from interfering with this defendant's right of possession of said property and premises, and (prayer 3) that "the plaintiff W. M. Adcock be temporarily restrained and permanently enjoined from occupying the dwelling located on the said premises;" and for general relief.
The plaintiffs demurred to this cross-action, on the ground that it does not set forth a cause of action in that it fails to allege that Mrs. Davidson has paid the amount of her bid; and to paragraph 6, "upon the ground that it is vague and indefinite in that it does not set out how, when, or by what authority Mrs. Davidson became the owner of the shrubbery referred to therein." The demurrer also assailed prayer 3 of the cross-action, on the ground that defendant asks "for a mandatory injunction, and the court is without jurisdiction to grant the same." The demurrer was overruled on all grounds, and the plaintiffs excepted pendente lite.
In an amendment the plaintiffs alleged that Mr. and Mrs. Berry "had no right or authority to execute and deliver a deed to said property until they had received the amount of said bid in cash and had accounted to your petitioners for the amount of cash paid, by delivering to them their notes, and the overplus in cash, and your petitioners allege that the amount due them over and above the amount of said indebtedness is $291.20, and said defendants have not surrendered to them their notes or paid them or offered to pay them the excess in cash, and, until these conditions are complied with, Mrs. Davidson has no right to a deed, or possession of said property." Paragraph 6 of this amendment was as follows: "Your petitioners show to the court, that since the execution of said security deed they have been using said premises as a nursery for the purpose of planting and transplanting shrubbery; the shrubbery placed on said described premises is not a permanent fixture, but is only placed there until it can be sold and transplanted, and is in the nature of a growing crop, and the defendants herein have no right or authority to sell, or offer for sale, any of said shrubbery, but it is personalty and remains the property of your petitioners, and the defendants have forbidden them to remove the same, and petitioners ask that defendants be restrained and enjoined from interfering with your petitioners' right to remove said shrubbery; that this is the time of year [March, 1941] in which to sell and transplant said shrubbery, and unless they are enjoined from interfering with your petitioners' right to remove said shrubbery, they will suffer an irreparable loss. That said shrubbery is of the reasonable value of $600."
In amendments to their answers the defendants alleged that "the overplus to plaintiff [plaintiffs] . . has now been paid, amounting to $293.64, and the notes of plaintiff [plaintiffs] have been delivered to the clerk of this court for delivery to him [them]."
On the trial the plaintiff, W. M. Adcock, testified in part: "When Mr. Medlock and I bought this property in question on January 2, 1939, there [were] agricultural crops, cotton and corn, growing on it. There was no shrubbery growing there. When we bought it we planted nursery stock on it. . . I have been in the nursery business twenty-five years. . . From my experience in this business you would not harm the real estate in removing shrubbery and nursery stock from the land in question. . . I have moved shrubbery and nursery stock from the premises in question. I did not damage the real estate in removing the stock. . . We bought it [the land] with the intention of opening a nursery place on it. . . There are several different items of nursery stock, we have different types of conifers — it's types of cedars and junipers. . . Plants are propagated from cuttings. We take the cuttings from the plant and put it in sand and let it root, and then transplant it to pots, and after that put it in fields. It should take about one year from the time it is put in the sand until it is put in the field. If it went in the field in one year as to the size of the plant would depend on the kind of soil and how well it did — it would be a small plant. I have plants on this particular land I bought from other people that make a business of propagating stuff and selling it. In one year, they would be around six inch plants. If the plant goes there in October, it should be a salable plant within a year from then, and certainly within two years. If they were sold in one year they would be small plants. They would be larger in two years. I would say the life of that particular plant would be twenty years, or more. We had hawthrones [hawthorns?]. It has berries on it, and blooms. . . We propagate this plant just like the others. We plant them in sand, and then transplant them in pots and then in the fields. Ordinarily when you put them in the sand it takes about one year before they are ready to go in the field, but they make salable plants in one year — they grow faster than cedars. We sell hawthrones to the public at the end of the year. It will run to the height of four or five feet at the end of the first year. Well, hawthrones is a fairly long-life plant. If hawthrones planted as I have described is propagated and planted in the field and allowed to grow and was not removed, it would grow to be a pretty high affair, it would spread out. I think it would go over fifteen feet and spread out. . .
"We had boxwood. . . These plants are allowed to stand in the field from one year on — we remove them just as we sell them. They might be ten years old when we sell them. If we were to sell one of these slow-growing boxwoods in two years, it would not be over eight or ten inches. If we sold the same plant at ten years, it would depend on what kind of soil it was in. In this particular soil on this farm I would say two or three feet. There is one type that grows very fast — the box tree, and then there is the little old English type that grows slow and there is one between them. There is an old English type that is reputed to be 150 years old. . . Both kinds are propogated by cuttings. After the cuttings are put out they are ready for market in about one year, and then we begin to sell from one to two years. It just depends on what the customer wants. . . We had flowering shrubs, that is spiraea. It is just a flowering shrub that blooms in the spring. To properly care for this particular shrubbery you must cut it back and keep it from spreading. . . I think their life would be ten or fifteen years. We had crepe myrtle. It is called a flowering shrub, and you can keep it in shrubbery or let it grow up like a tree. . . It depends upon the size of the plant the customer wants when it is sold, but it makes a good plant at one to two years. In ten years if it has not been cut back, and permitted to grow in ordinary soil such as that on over there, I think it would be ten or twelve feet. We had abelia. That is another flowering shrub. It is an evergreen and flowering plant. . . Most any shrub is supposed to be cut back. If allowed to grow in its natural way it would run up six or eight feet, and wouldn't live over ten years. There was a nice variety of shrubbery; we had different types of euonymus. It is just a lot of shrubbery stock they use to beautify grounds. None of that stock produced any food to eat, or no nuts. None of those plants produced gum that is salable. Yes, we had nursery stock that could be propagated by rooting, putting in the ground and harvesting in one year, like spiraea and abelia, cuttings could be put out in the spring and harvested in the fall. I have done that. I wasn't doing it then myself. Unless we were overstocked on that particular plant, we would not harvest it in a year but would let it go over the next year. . . Among the nurserymen we do sell each other some young stock to go in the field, and that is called lining it out. It is young stock rooted ready to set in the field, to grow for future sale. I did not sell any of this stock as lining-out stock. If we had more than we needed we could sell it, but I did not sell it. I did not at any particular instance have more than I needed, and sold it that way. That is stock that is not old enough and large enough for the public, and we merely take it and transplant it and grow it larger."
Still other evidence was introduced by the plaintiffs, and evidence in rebuttal was introduced by the defendants; but none was stronger for the plaintiffs than the foregoing, on the question of title to the nursery stock. At the conclusion of the evidence, the judge directed a verdict in favor of the plaintiffs for the amount claimed as "overplus" from the sale of the land, and in favor of the defendants on the issue of title to the nursery stock. A decree in accordance with such verdict was directed, and in this decree the defendants were "permanently enjoined from interfering in any manner . . with defendant Mrs. Dorothy T. Davidson in her quiet and peaceable possession of said nursery stock, or the premises upon which the same is located." The plaintiffs moved for a new trial on the general grounds, and by amendment error was assigned on the direction of the verdict in favor of the defendants as to the title to the nursery stock, "because, under the pleadings and the evidence in this case, whether said nursery stock were or were not personalty was a question of fact which should have been submitted to the jury under appropriate instructions from the court; . . and movant contends under the evidence and the pleadings in this case this was a question of fact for the jury, and it was contrary to law for the court to invade the province of the jury and direct a verdict under conflicting evidence." The motion was overruled, and the plaintiffs excepted, assigning error on that judgment, and on the exceptions pendente lite to the overruling of the demurrer to the cross-action of Mrs. Davidson.