Home Mixture Guano Co. v. Woolfolk

George, J.

(After stating the foregoing facts.) The constitution declares, “Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.” Civil Code, § 6540. Before this provision was inserted in the constitution of this State, this court, in analogy to the rule fixed for civil cases, required equity suits to be brought in a county where one of the defendants resided against whom substantial relief was prayed. See Gilbert v. Thomas, 3 Ga. 575 ; Rice v. Tarver, 4 Ga. 571 ; Carter v. Jordan, 15 Ga. 76 ; Jordan v. Jordan, 16 Ga. 446, 456 ; Lavender v. Thomas, 18 Ga. 668, 678 ; Anderson v. Sego, 19 Ga. 501 ; Kendrick v. Whitfield, 20 Ga. 379, 381 ; Lawson v. Cunningham, 21 Ga. 454 ; Smith v. Iverson, 22 Ga. 190 ; Dew v. Hamilton, 23 Ga. 414 ; Bowman v. Long, 27 Ga. 178 ; Key v. Robison, 29 Ga. 34 ; Carswell v. Macon Mfg. Co., 38 Ga. 403, 406 . In the case last cited, referring to the provision as it appeared in the constitution of 1868, it was said: “We do not think the constitution intends any more than this: to make a constitutional provision of what before rested in the decisions of the courts.” Section 5527 of the Code of 1910 declares: “All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom a substantial relief is prayed, except in cases of injunctions to stay pending proceedings, when the petition may be filed in the county where the proceedings are pending: Provided, *571 no relief is prayed as to matters not included in such litigation.” The exception noted in the code provisions just' quoted was also recognized before the adoption of the constitutional provision requiring equity causes to be brought in the county where one of the defendants against whom substantial relief is prayed resides. Carswell v. Macon Mfg. Co., supra. To quote again from this case: “This rule does not apply to bills ancillary to suits at law, as for discovery, injunction, etc. In such causes, so far as the bill is merely defensive, and seeks no relief outside of the suit pending, the county where the suit is pending has jurisdiction.” See also Markham v. Huff, 72 Ga. 874 ; James v. Sams, 90 Ga. 404 ( 17 S. E. 962 ); Rounsaville v. McGinnis, 93 Ga. 579, 581 ( 21 S. E. 123 ); Moore v. Medlock, 101 Ga. 94 ( 28 S. E. 836 ); Ray v. Some &c. Co., 106 Ga. 492 ( 32 S. E. 603 ); Dawson v. Equitable Mortgage Co., 109 (7a. 389 (2), 392 ( 34 S. E. 668 ). In Caswell v. Bunch, 77 Ga. 504 , the rule is said to proceed “upon the idea that the party, by voluntarily instituting the suit, gives the court of the county where the suit is instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted. Such equity proceedings are ancillary to or defensive of the pending proceedings.” In Thomason v. Thompson, 129 Ga. 440 ( 59 S. E. 236 , 26 L. R. A. (N. S.) 536), it was ruled: “Where an execution has been levied on land, and a claim is filed, and the papers are returned to the superior court of the county where the land lies, for trial, that court has jurisdiction of an ancillary petition in aid of the levy, instituted by the plaintiff in execution against a claimant, irrespective of the claimant’s residence, as to matters germane to the issue involved in the claim case.” In Crawley v. Barge, 132 Ga. 96, 98 ( 63 S. E. 819 ), it was said: “The exception stated in section 4950 [section 5527 of the Code of 1910] can be upheld only on the theory of waiver, that is, that where a party institutes a proceeding in a county other than that of his residence, against a person residing in such county, he submits himself, to the extent of such suit, to the equitable jurisdiction of the superior court of the county in which the suit is brought. . . But such defendant can not go further and turn the case into a general equity suit-against the original plaintiff.” From the foregoing it follows that if the matters alleged and the relief prayed against the plaintiff in error *572 be germane to the issue involved in the suit in the .city court of Albany, the superior court of Dougherty county has jurisdiction of the present case, provided the waiver extends to the defendants in error, the plaintiffs in the equity suit below. If the defendants in error in an equity suit brought in the county of the residence of the plaintiff in error could have set up all the matters alleged in the present suit and could have obtained the relief prayed, it would seem that the matters are involved in and germane to the case pending in the city court of Albany. In other words, any matter germane to the equitable relief sought by the defendants in error in an independent suit brought against the plaintiff in error in the county of its residence may properly be regarded as germane to the issues involved in the suit in the city court of Albany. The whole purpose of the equity ease in the superior court of Dougherty county was to enjoin the prosecution of the suit in the city court of Albany, the taking of judgment therein in accordance with the stipulation to confess judgment, entered into by the executor and the plaintiff during the progress of the suit in the city court, and to set aside such agreement, to the end that the matter involved in that case could be determined upon its merits. In so far as the cancellation of the lien created by the agreement to confess judgment is prayed, the executor was a necessary party. Brown v. Wilcox, 147 Ca. 546 ( 94 S. E. 993 ). However, the inclusion of this prayer is not necessarily fatal to the jurisdiction of the court. In Crawley v. Barge, supra, it was said that the rule, “a suitor is not to be turned out of court for his much praying,” is applicable only where the court has jurisdiction, but where certain prayers are not proper under the facts of the case made. It was there ruled that the petition in that case, if otherwise unobjectionable, “prayed for relief as to matters not included in the proceeding sought to be enjoined, and was, therefore, subject to demurrer on the ground of want of jurisdiction.” There the trial court sustained the demurrer to the petition, and the effect of the ruling by this court was to hold that the judgment would not be reversed, inasmuch as the pleader made no effort to eliminate the objectionable prayer, and insisted upon his petition as a whole. In the present case the court overruled the demurrer, and we are not disposed to reverse the judgment. The matters set up in. the equitable petition and the relief *573 prayed were necessarily defensive to the suit filed in the city court of Albany. And even if the petition contained an objectionable prayer, objectionable only because certain relief sought could not be granted because of the failure to make the executor a party defendant, the judgment of the trial court in overruling the general demurrer filed by the defendant (plaintiff in error) will not be reversed.

Did the plaintiff in error, by instituting a suit in another county against the testatrix in her lifetime, to which her executor was made a party after her death, impliedly consent that the forum to which it applied for relief might adjudicate all matters between it and the legatees and devisees of the testatrix, germane to the litigation ? In other words, did the waiver extend to the. defendants in error, the whole estate having been devised to them. In Crawley v. Barge, supra, Chief Justice Fish, speaking for the court, said: “Whether the waiver of, or submission to, the jurisdiction referred to is only as to parties to the suit instituted, or as to all persons who may be affected by it, is a question which has not, so far as we are advised, been determined.” In Keith v. Hughey, 138 Ga. 769 (2) ( 76 S. E. 91 ), it was ruled that “This waiver operates as to persons who are or properly become parties to such litigation.” And it was there held: “A defendant in execution is not a party to a claim case; and the waiver which operates between the claimant and the plaintiff in fi. fa. does not authorize the defendant in fi. fa. to file an equitable petition against both of them, but praying substantial relief only against the claimant, in the county in which the claim case is pending, where the claimant resides in another county of this State.” On the question here under consideration this court has committed itself to a strict construction of the exception contained in section 5527, supra. However, the legatees and devisees of the testatrix, who under the will took the entire estate, were not strangers to the litigation in the city court of Albany. A judgment against the executor will bind them. The executor represents them. Winn v. Walker, 147 Ga. 427 ( 94 S. E. 468 ), and cases there cited. The executor is himself insolvent, under the allegations of the petition. If a judgment is taken upon the agreement made between the executor and the plaintiff in the suit in the city court, the same can be satisfied only out of property devised to the defendants in *574 error. They allege collusion between the plaintiff in error and the executor; they also allege fraud after the facts, and the allegations of the petition in this respect .are sufficient to withstand the demurrer. They also allege that the executor has assented to the legacies. We are of the opinion that the defendants in error, under all the allegations of the petition, were entitled to maintain the suit in the superior court of Dougherty county, and that the waiver made by plaintiff in error should not be restricted to the executor of the estate, who can not be actually affected by any judgment rendered against him in the case pending1 in the city court.

The remaining ground of demurrer requires consideration. The plaintiff in error contends that the executor had the right to compromise and settle' doubtful and contested" claims against the estate, under sections 3892, 4001, and 4004 of the Civil Code; that the executor agreed to a compromise settlement of its claim, stipulated to confess judgment if the ^compromise agreement was not carried out, and executed, in the same agreement, a lien upon specific property devised by the will to secure tire payment of the compromise sum; that this agreement is binding upon the heirs; and that the executor acted with full knowledge of all the facts, and had the authority to make such agreement. The authority of the executor to compromise contested or doubtful claims for or against the estate represented by him is not questioned. This authority, however, is no warrant to an executor to enter into a collusive and fraudulent agreement and. thereby bind the estate represented by him. Such compromise, "if collusive and fraudulent, as charged in the petition, is no more binding than any. other agreement, judgment, or decree obtained by fraud and collusion. On the important questions of jurisdiction and of parties involved in this ease, our conclusions have not been reached without some misgivings; but upon the question last discussed we have no doubt.

From the foregoing it follows that the general and special demurrers to the petition, in so far as the petition prayed that, the plaintiff be enjoined from proceeding further with the suit pending in the city court of Albany, and that equity take jurisdiction of the case, were properly overruled. In so far as the petition prayed for a decree in terms canceling the lien executed to plaintiff in *575 error, the special demurrer should have been sustained. The executor was a necessary party defendant for that purpose.

Judgment affirmed in part and reversed in part.

All the Justices concur.