Welch et al. v. Agar

Supreme Court of Georgia1890-03-10

84 Ga. 583

Summary · law.co

Holding. The judgment was reversed because the court erred in ordering the writ of partition to issue. A creditor holding an absolute deed as security for a debt should generally be denied partition relief in the absence of a special cause, since the legislature has provided a specific statutory remedy of foreclosure available to such creditors.

A creditor sought partition of property where the creditor held an absolute deed as security for a debt owed by the debtor. The court examined whether such a creditor could obtain partition and concluded that while creditors holding certain types of security interests may sometimes seek partition, a creditor holding an absolute deed should generally be denied partition relief. The legislature has provided a specific statutory remedy for creditors with security interests—foreclosure through execution of a deed and levy and sale—and courts should not circumvent this established procedure by granting partition instead, absent a compelling reason to do so.

The court also addressed procedural defects in the case, noting that a minor party, Mrs. Hoge, had been served but did not appear and the proposed guardian ad litem declined the appointment. Under applicable law, an express acceptance of a guardian ad litem appointment is required for an infant to be properly made a party. The court suggested that the petition be amended to allege that Mrs. Hoge had since reached majority, with service of the amendment upon her, or alternatively, that an order reciting her attainment of age be served. Additionally, while not declaring it necessary, the court observed that it would be prudent to make the trustee a party to ensure the partition would be conclusive as to both legal and equitable title.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a creditor holding an absolute deed as security for a debt may obtain partition
Proper procedure for making a minor a party to an action when a proposed guardian ad litem declines appointment
Whether a trustee should be made a party to a partition action to ensure conclusiveness of the decree

Procedural posture

The trial court granted a petition for partition brought by a creditor holding an absolute deed as security, and the creditor appealed or the judgment creditor appealed the denial of partition.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bleckley, Chief Justice.

1. Mrs, Hoge was a minor, and although service was made upon her, she did not appear or plead, nor did her husband accept the appointment of guardian ad litem, but expressly declined the same. The court should not have proceeded in spite of his declination, for the precise opposite is the spirit of our law. It contemplates an express acceptance, in order to make the infant a party with perfect regularity. Code, §3263(a). If Mrs. Hoge had voluntarily appeared after she attained majority, that would have sufficed, as it seems she had arrived at age when the trial on the petition took place. But service upon her during her minority would not compel her appearance after arriving at age. The petition should be amended, alleging that she is no longer a minor, and copy of the amendment should be served upon her. Then she would be bound whether she appeared or not, if in fact she be now of full age. The same result might be accomplished by an order reciting her arrival at age, and service upon her of such order.

2. As the formal legal title to the whole premises is perhaps outstanding in a trustee, it would also be better that he be made a party. The order appointing him calls him a naked trustee, but it goes on and clothes him with all the rights and powers conferred by the deed of trust upon the original trustee; and the original trustee took the power to sell and reinvest m conjunction with Mrs. Welch. It may be that this power is no longer exercisible, if all the minors interested in the property have attained their majority. We do not rule that he is a necessary party, but it would be judicious to bring him before the court, if it be designed-to make the partition absolutely conclusive upon the title both legal and equitable.

3. With respect to the right of a creditor who holds an absolute deed as security for his debt to have partition, there is some difficulty, because his title is defeasible, and because his bond is outstanding to reconvey; not an estate in severalty, but an estate in common, the same sort of estate which he acquired from his debtor as security. Following analogies, we would say that he can have partition, certainly so with the concurrence of his debtor, the holder of the bond for titles; and without such concurrence,if there be any good reason shown why he ought to have his estate in common changed to one in severalty. We find it ruled that mortgagees holding the legal title may under some circumstances have partition. Colton v. Smith, 11 Pick. 311; Rich v. Lord, 18 Pick. 322; Barbour on Parties, 423; Freeman on Coten. §§451, 452. See, however, 1 Jones on Mort. §705. To grant partition at the instance of a creditor holding an absolute deed, as in the present case, would relieve him from reeonveying the kind of estate which he holds and which he has engaged by his bond to restore to his debtor upon payment of the debt. To work this result in opposition to the will of the debtor, ought to require a very strong reason, inasmuch as the statute gives another remedy for realizing on such a security, namely, the execution of a deed and levy and sale of the property after obtaining judgment on the debt. Code, §1970. In all applications for partition, the court has a discretion to deny the writ where a sufficient reason appears (Code, §4006), and that the applicant holds a deed for security only is a very potent reason for denying the petition, where it is not shown that some special cause exists for not using at once the appropriate statutory-remedy expressly provided by the legislature in behalf of such a creditor. In this case, no such cause appears, and we think the court erred in ordering the writ to issue. Judgment reversed.