Cobb, P. J.
(After stating the facts.)
1. While the record in this case contains only the petition and the demurrer, it fairly bristles with- allegations of fact and averments of dates; and this is calculated to beget confusion. But, after a careful consideration of the petition, we think that the case- at last can be resolved by the application of a few well-settled principles. The judges of the superior court can not exercise any power out of term time, unless the authority to do so is expressly granted hy law, or an order has been taken in term conferring authority to render a judgment in vacation. Civil Code, §4325. The law expressly authorizes such judges to hear and determine, in vacation, without an order passed in term, motions for new trials, certioraries, and such other matters as are not referred to a jury, provided application is made by either party, or his counsel, and ten days notice in writing is given to the opposite party of the time and place of hearing. Civil Code, §§4323, 4324. What purports to be a consent decree in the present case-was not, according to the allegations in the petition, entered in term time. It does not appear that an order was taken in term authorizing the decree to be entered in vacation. The allegation of the petition is that there was no such order. The matters involved were such as, under the law, would be referred to a jury, unless, by consent, the judge was authorized to pass upon the questions of fact involved. Even if a case of this character cordd be heard in vacation, under the sections above referred to, providing for ten clays notice, there was nothing to indicate that a hearing was had under this provision of the law. On the contrary it appears, from the very paper itself, that the decree was not so signed, it being stated therein that the terms of the decree were agreed upon in term and the decree entered nunc pro tunc. While an order, judgment, dr decree may be entered nunc pro tune under certain conditions, this must be done in term time, except in those cases where the judge is author-^ ized to act in vacation. Of course it is within the power of parties to waive the disqualification of the judge; and when such waiver is made, he has, in the particular case, all the authority that he would have if no such disqualification existed; but mere waiver of the disqualification does not confer upon him any greater [750]*750power than he already had under the law. Even if .the presiding judge had not been disqualified in the present case, we think the decree would be inoperative for the reasons above referred to.
2. As the decree was inoperative as a judgment of the court, the question arises, how far is the paper binding upon the parties who have consented thereto? "While what purports to be a consent decree may fail to operate as a judgment binding upon the parties, on account of the want of jurisdiction in the court, or other valid reason, still, if the terms of the same were entered into upon a sufficient consideration, agreed to by the parties with a full knowledge of its contents, it would, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all of the parties thereto. Kidd v. Huff, 105 Ga. 208 (1); Driver v. Wood, 114 Ga. 296. What purports to be the consent decree is signed by counsel.in behalf of at least some of the plaintiffs. It is distinctly alleged that none of the plaintiffs ever consented to the decree, but it is not denied that the counsel who signed the decree were the counsel of record of those parties whom they purported to represent. The signature of the counsel would therefore be prima facie evidence, that the parties had consented thereto. The control of counsel over a case in their hands is, under the law, very broad, and, except in those cases where the law distinctly declares that counsel can not bind their clients by agreement entered into in reference to a case in which they are employed, the consent of counsel will bind the client so far as the opposite party is concerned; the counsel, of course, being responsible to his client for any loss resulting from the fact that he has disobeyed instructions, or the rights of his client have been prejudiced by his negligence. But, for the purposes of this case, we will deal with what purports to be a consent decree as inoperative upon the plaintiffs, both as a judgment and as an agreement; for in our opinion, even when it is so dealt with, there is no equity in the petition. All of the plaintiffs sue as the heirs at law of Susan A. Sapp in reference to some of the matters involved.' Two of the plaintiffs set up title in themselves; each to a portion of the lands in controversy. We will first deal with the petition so far as it relates to the alleged claims of the heirs at law of Susan A. Sapp. It must be kept in mind that the estate of Susan A. Sapp is represented by an administrator. The bank had a mortgage [751]*751execution upon a piortion of the lands involved in the controversy; such mortgage having been given by Susan A. Sapp. A sale under this mortgage execution had been enjoined at the instance of Eagan in one proceeding, and Mrs. Grace in another. With these injunctions removed there was no legal obstacle in the way of the bank proceeding to sell the land embraced in its mortgage execution. The parties who had obtained these injunctions consented to the sale, and the plaintiffs had no concern in this matter. Eagan and Sirs. Grace could have dismissed their bills and the injunction been thereby dissolved. They could have allowed their bills to remain pending, and it was no concern of the plaintiffs in this ease that they had consented to the injunction being, in effect, dissolved. Even if the bank had caused a sale to be had in violation of the injunctions, it would have been no concern of the jdaintiffs, but the officers of the bank and its counsel would have rendered themselves amenable to the court for contempt, and, at the instance of Eagan and Mrs. Grace, proceedings might be had to punish them for contempt or to restore- the status. But the plaintiffs had no concern whatever in reference to this matter. If the mortgage-foreclosure judgment was a valid judgment against the administrator, title to the land would have passed at the sale. If it was not a valid judgment, no title would have passed. But it is said that under the terms of the consent decree the proceeds of the sale were to be divided in such way as to prejudice the heirs of Susan A. Sapp, that claims were to be paid which were not charges against her estate at all, and that it provided for the payment of the debts of W. B. Sapp out of the proceeds. It is also, in effect, charged that the lands not embraced in the mortgage were to be sold under the mortgage execution. There is no allegation that the administrator of Susan A. Sapp is insolvent, nor is it alleged that the securities on his bond are insolvent. If the sale under the mortgage execution of the bank was conducted in good faith and without collusion between the administrator and the bank, the sale was valid. And even if there was collusion between the administrator and the bank, and Williamson was not a party to the collusive arrangement, but bought in good faith as the highest bidder at the sale, the sale would be valid. But if the administrator had been faithless to his trust in any way, he must respond to the heirs of the estate for [752]*752the amount which they have been damaged. If the administrator has agreed to pay claims out of the assets of the estate which he had no authority to pay, upon an accounting he will be held liable to the heirs for such amounts.
Free access — add to your briefcase to read the full text and ask questions with AI
Cobb, P. J.
(After stating the facts.)
1. While the record in this case contains only the petition and the demurrer, it fairly bristles with- allegations of fact and averments of dates; and this is calculated to beget confusion. But, after a careful consideration of the petition, we think that the case- at last can be resolved by the application of a few well-settled principles. The judges of the superior court can not exercise any power out of term time, unless the authority to do so is expressly granted hy law, or an order has been taken in term conferring authority to render a judgment in vacation. Civil Code, §4325. The law expressly authorizes such judges to hear and determine, in vacation, without an order passed in term, motions for new trials, certioraries, and such other matters as are not referred to a jury, provided application is made by either party, or his counsel, and ten days notice in writing is given to the opposite party of the time and place of hearing. Civil Code, §§4323, 4324. What purports to be a consent decree in the present case-was not, according to the allegations in the petition, entered in term time. It does not appear that an order was taken in term authorizing the decree to be entered in vacation. The allegation of the petition is that there was no such order. The matters involved were such as, under the law, would be referred to a jury, unless, by consent, the judge was authorized to pass upon the questions of fact involved. Even if a case of this character cordd be heard in vacation, under the sections above referred to, providing for ten clays notice, there was nothing to indicate that a hearing was had under this provision of the law. On the contrary it appears, from the very paper itself, that the decree was not so signed, it being stated therein that the terms of the decree were agreed upon in term and the decree entered nunc pro tunc. While an order, judgment, dr decree may be entered nunc pro tune under certain conditions, this must be done in term time, except in those cases where the judge is author-^ ized to act in vacation. Of course it is within the power of parties to waive the disqualification of the judge; and when such waiver is made, he has, in the particular case, all the authority that he would have if no such disqualification existed; but mere waiver of the disqualification does not confer upon him any greater [750]*750power than he already had under the law. Even if .the presiding judge had not been disqualified in the present case, we think the decree would be inoperative for the reasons above referred to.
2. As the decree was inoperative as a judgment of the court, the question arises, how far is the paper binding upon the parties who have consented thereto? "While what purports to be a consent decree may fail to operate as a judgment binding upon the parties, on account of the want of jurisdiction in the court, or other valid reason, still, if the terms of the same were entered into upon a sufficient consideration, agreed to by the parties with a full knowledge of its contents, it would, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all of the parties thereto. Kidd v. Huff, 105 Ga. 208 (1); Driver v. Wood, 114 Ga. 296. What purports to be the consent decree is signed by counsel.in behalf of at least some of the plaintiffs. It is distinctly alleged that none of the plaintiffs ever consented to the decree, but it is not denied that the counsel who signed the decree were the counsel of record of those parties whom they purported to represent. The signature of the counsel would therefore be prima facie evidence, that the parties had consented thereto. The control of counsel over a case in their hands is, under the law, very broad, and, except in those cases where the law distinctly declares that counsel can not bind their clients by agreement entered into in reference to a case in which they are employed, the consent of counsel will bind the client so far as the opposite party is concerned; the counsel, of course, being responsible to his client for any loss resulting from the fact that he has disobeyed instructions, or the rights of his client have been prejudiced by his negligence. But, for the purposes of this case, we will deal with what purports to be a consent decree as inoperative upon the plaintiffs, both as a judgment and as an agreement; for in our opinion, even when it is so dealt with, there is no equity in the petition. All of the plaintiffs sue as the heirs at law of Susan A. Sapp in reference to some of the matters involved.' Two of the plaintiffs set up title in themselves; each to a portion of the lands in controversy. We will first deal with the petition so far as it relates to the alleged claims of the heirs at law of Susan A. Sapp. It must be kept in mind that the estate of Susan A. Sapp is represented by an administrator. The bank had a mortgage [751]*751execution upon a piortion of the lands involved in the controversy; such mortgage having been given by Susan A. Sapp. A sale under this mortgage execution had been enjoined at the instance of Eagan in one proceeding, and Mrs. Grace in another. With these injunctions removed there was no legal obstacle in the way of the bank proceeding to sell the land embraced in its mortgage execution. The parties who had obtained these injunctions consented to the sale, and the plaintiffs had no concern in this matter. Eagan and Sirs. Grace could have dismissed their bills and the injunction been thereby dissolved. They could have allowed their bills to remain pending, and it was no concern of the plaintiffs in this ease that they had consented to the injunction being, in effect, dissolved. Even if the bank had caused a sale to be had in violation of the injunctions, it would have been no concern of the jdaintiffs, but the officers of the bank and its counsel would have rendered themselves amenable to the court for contempt, and, at the instance of Eagan and Mrs. Grace, proceedings might be had to punish them for contempt or to restore- the status. But the plaintiffs had no concern whatever in reference to this matter. If the mortgage-foreclosure judgment was a valid judgment against the administrator, title to the land would have passed at the sale. If it was not a valid judgment, no title would have passed. But it is said that under the terms of the consent decree the proceeds of the sale were to be divided in such way as to prejudice the heirs of Susan A. Sapp, that claims were to be paid which were not charges against her estate at all, and that it provided for the payment of the debts of W. B. Sapp out of the proceeds. It is also, in effect, charged that the lands not embraced in the mortgage were to be sold under the mortgage execution. There is no allegation that the administrator of Susan A. Sapp is insolvent, nor is it alleged that the securities on his bond are insolvent. If the sale under the mortgage execution of the bank was conducted in good faith and without collusion between the administrator and the bank, the sale was valid. And even if there was collusion between the administrator and the bank, and Williamson was not a party to the collusive arrangement, but bought in good faith as the highest bidder at the sale, the sale would be valid. But if the administrator had been faithless to his trust in any way, he must respond to the heirs of the estate for [752]*752the amount which they have been damaged. If the administrator has agreed to pay claims out of the assets of the estate which he had no authority to pay, upon an accounting he will be held liable to the heirs for such amounts. The decree docs not stand in the way of the heirs as a judgment, and if, as a contract, it is binding upon the administrator, .the heirs may still go behind it and show that he has entered into an agreement which was unauthorized by law, and therefore he must make good to the heirs the loss they have sustained thereby. As to all of the matters alleged as claims of the plaintiffs as heirs at law of Susan A. Sapp, they have an adequate remedy at law by suit against the administrator and the securities on his bond, and it is not necessary that the paper purporting to be a consent decree should be cancelled.
3. The petition also sets up a claim of title on behalf of George W. Sapp and Charles W. Sapp, each to a different part of the lands in controversy. The decree purported to withdraw the claims which these parties had filed. There is no denial of the fact that the counsel signing the decree in their behalf represented them, and it was within the authority of counsel to withdraw their claims if they saw proper; being liable to their clients in the event that this was contrary to instructions, or negligence on their part. There is nothing in the decree which purports in terms to condemn the land of these two Sapps to any of the executions. It only purports to withdraw the claims; and so far as they constituted an obstacle to the sale, such obstacle was thus removed. There is nothing in the decree which makes the land subject to the executions,'if they were not already subject, and there is nothing which prevents the claimants from thereafter asserting title to the same. They claim title under a parol gift from their father and mother; such gift being followed by valuable improvements. If, at the time that their father was the owner, he gave them the land claimed, and in pursuance of this parol gift they entered in good faith and made valuable improvements, they would have a complete equity as against him and as against all persons who attempted to acquire any interest from him after they had entered into possession and made the improvements and while they were still in possession. This would also be true if their mother was the owner of the property and the gift emanated from her. It was not absolutely indispensable to the completion. [753]*753of their equity that their possession should continue for seven 3'ears. Garbutt v. Mayo, ante, 269. The allegations in reference 'to the parol gift and the improvements made on the faith of the same are meager, but possibly sufficient to withstand a general demurrer. But there is no pra3rer that the title acquired under this parol gift be recognized; the prayers of the petition are merely to restrain the sheriff from putting Williamson in- -possession of the land sold under the mortgage execution of the' bank, and to restrain all of the defendants from interfering with any of the land mentioned in the petition, and to set aside the consent decree and the sale in pursuance thereof, and for general relief. The prayer for general relief would not authorize a decree 'setting up the title under the parol gift, for it is well settled that no-'relief can be granted under such prayer except that which is germane or connected with one of the specific prayers.' Steed v. Savage, 115 Ga. 97. What might be the rights of these two Sapps in another proceeding, in which they set up their title under the parol gift and ask for an injunction to prevent the sheriff from dispossessing them, we will not now determine; but,'under the pra3rers of the present petition, they are not entitled to a decree declaring them the owners of the property as against the mortgage ■execution of the bank. They are not bound by the decree as a judgment, and they are not bound by the decree as a contract, for the reason' that paper does not purport to divest .them of any rights which they might have in the land. They may hereafter assert their title in a proper proceeding with the proper prayers. Whether, if there had been a prayer in the present case for this relief, the petition would have been multifarious we will not now determine. In no view of the case do we think that there was an\r •equity in the petition.
4. As to the defendants who demurred the petition was properly dismissed, but it should not have been dismissed as to the defendants who did not unite in the demurrer. Ballin v. Ferst, 55 Ga. 546 (4); Byrom v. Gunn, 111 Ga. 806 (2).
Judgment affirmed, with direction.
All the Justices concur.