Opinion
17376.
MARCH 13, 1951.
Injunction, etc. Before Judge Paschall. Whitfield Superior Court. October 31, 1950.
Isaac C. Adams, for plaintiff in error.
Hardin McCamy, contra.
Where liens are being asserted against real estate, and the property is ordered sold by the trial judge, with the proviso that the funds shall "stand in lieu of the real estate," neither of the lienholders may thereafter assert his lien against the real estate, but must proceed against the funds derived from such sale.
No. 17376. MARCH 13, 1951.
Cherokee Building Supply Company filed its petition against G. M. Parker and G. L. Parker, and in substance alleged: The plaintiff is engaged in the business of furnishing building supplies, and during the year 1948 furnished certain building materials at the instance of G. L. Parker, as owner of certain described real estate, enabling him to have constructed upon the real estate a dwelling house. G. L. Parker is a son of G. M. Parker. Prior to furnishing the materials, the defendants came to the plaintiff's place of business and arranged for the purchase. They represented that G. L. Parker was without funds to pay for the materials, but that there would be no other charges for materials or labor going into the construction of the house. The plaintiff would not have sold materials to the defendant, G. L. Parker, without payment upon delivery, had not the defendant stated that there would be no lien competing with the lien of the plaintiff. Upon completion of the dwelling house, G. M. Parker filed his claim of lien as carpenter and contractor against the real estate, and on September 14, 1948, filed suit for the foreclosure of his lien. On October 4, 1948, he took a judgment for $930 principal, plus interest and costs. On May 30, 1949, while the real estate was being advertised for sale, the plaintiff filed a suit to enjoin the sale and set aside the judgment of G. M. Parker against his son. At a hearing on June 6, 1949, the prayer for temporary injunction was denied. By consent of the parties the court entered a judgment ordering that the property be sold, that the funds derived from the sale stand in lieu of the property, and that a distribution of the funds be made on the final determination of the cause. On June 7, 1949, the property was exposed at public sale by the sheriff; and the plaintiff being the highest bidder, for $1700, a deed was executed by the sheriff to the plaintiff. The plaintiff entered into possession of the property, and is now in possession thereof. The plaintiff's case came on for trial, and on October 7, 1949, a verdict and judgment (general and special) were returned in favor of the plaintiff in an amount in excess of the sale price of the property. The sheriff was ordered to pay over the funds derived from the sale to the plaintiff, and the judgment of G. M. Parker against G. L. Parker was declared invalid and set aside as having been rendered within twenty days from the date of the filing of the suit of foreclosure. G. M. Parker filed a motion for new trial, and notified the sheriff not to pay out the funds derived from the sale of the property. On January 16, 1950, G. M. Parker dismissed his motion for new trial; and on January 18, 1950, while the superior court was in session, G. M. Parker took a second verdict and judgment on his original foreclosure proceedings against the property, and is now asserting his alleged lien against the property. This verdict and judgment are a cloud upon the plaintiff's title. The plaintiff prayed that this judgment be declared null and void, and canceled as a cloud upon its title.
The defendant's demurrers were sustained in part, with the right in the plaintiff to amend, and the plaintiff amended its petition within the time ordered by the court. The defendant excepted pendente lite to the overruling of his general demurrers and other grounds of special demurrer, and to the overruling of his motion to strike the plaintiff's amendment.
Upon the call of the case for trial, and after the jury was sworn and witnesses were called, but before testimony was introduced, counsel for the plaintiff called to the court's attention the fact that there had been no ruling upon its demurrers to the answer of the defendant. Counsel for the defendant objected to the court ruling upon the plaintiff's demurrers, upon the ground that they had been waived. The court heard argument on the demurrers, which were sustained, and the defendant's answer was stricken. The judgment of the court of June 6, 1949, ordering that the property be sold and that the funds derived from the sale "stand in lieu of the real estate," the deed from the sheriff to the plaintiff pursuant to such order of sale, and all pleadings in the litigation were introduced in evidence by counsel for the plaintiff. A verdict was directed for the plaintiff for a cancellation of the second judgment dated January 18, 1950, in favor of G. M. Parker against G. L. Parker, which judgment purported to establish the lien of the defendant against the property which had been sold by the sheriff under the court's order of June 6, 1949. A judgment was entered, canceling and setting aside the judgment of G. M. Parker against G. L. Parker, dated January 18, 1950. The defendant, G. M. Parker, filed exceptions pendente lite to the order sustaining the plaintiff's demurrers to the defendant's answer, and filed a motion for new trial. His motion for new trial was overruled, and he excepts to that judgment and assigns error on all of his exceptions pendente lite.
It conclusively appears from the record that the judgment of June 6, 1949, ordering that the property be sold and that the funds derived from the sale stand in lieu of the real estate, was entered by consent of the parties.
Under the Code, § 67-2301 (3), it is provided: "If any real property on which there is a lien be sold by any process from the courts, the purchaser shall obtain the full title, and the lien shall attach to the proceeds of the sale, upon notice by the party claiming the lien to the officer to hold the money for that purpose until the next session of the superior court."
Although the property was advertised for sale under a judgment which was later vacated and set aside, the trial judge had authority to order that the sale proceed as advertised and that the funds be held in lieu of the property. Under the provisions of the above Code section, the purchaser at such sale obtained the "full title."
The Code, § 110-501, provides: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." See also Manry v. Stephens, 190 Ga. 305 ( 9 S.E.2d 58); Spence v. Erwin, 200 Ga. 672 ( 38 S.E.2d 394); Hubbard v. Whatley, 200 Ga. 751 ( 38 S.E.2d 738).
The court had jurisdiction of the parties and of the subject matter, and the issue was before the court as to whether or not the property should be sold. The judgment directing the sale to proceed, with the funds to stand in lieu of the property, has not been reversed, vacated, or set aside, and that judgment is conclusive on the right of the defendant to thereafter undertake to assert a lien against the property.
The judgment subsequently procured by the defendant on January 18, 1950, which purported to set up a lien against the real estate, was subject to the attack that it constituted a cloud upon the plaintiff's title. When the plaintiff introduced in evidence the judgment of June 6, 1949, ordering the sale, and its deed from the sheriff, the court properly directed a verdict for the plaintiff vacating and setting aside the second judgment procured by the defendant, which purported to establish the defendant's lien as against the real estate.
If error was committed by the trial court in any antecedent ruling, on which error was assigned in the exceptions pendente lite, this would not require the grant of a new trial, since the judgment ordering the property sold precludes any right of the defendant to set up his lien against the real estate. Eve v. Crowder, 59 Ga. 799; Edwards v. Worley, 70 Ga. 668 (2); Ricks v. Redwine, 73 Ga. 273 (2-a); Nunnally v. Owens, 90 Ga. 220 ( 15 S.E. 765); Merritt v. Jones, 136 Ga. 618, 619 (5, 6) ( 71 S.E. 1092); Reeves v. Lancaster, 159 Ga. 541 (5) ( 126 S.E. 480); Progressive Life Ins. Co. v. Bohannon, 75 Ga. App. 625 ( 44 S.E.2d 180).
Whether or not the defendant might have amended his lien-foreclosure proceedings and asserted his claim of lien against funds derived from the sale of the property is not involved in this case.
Judgment affirmed. All the Justices concur.