On an application to register title under the land-registration act (Code, §§ 60-101 et seq.), where it appeared that the examiner as an attorney had conducted a sale of the land by foreclosure, he having prepared the advertisement and drawn the deed conveying the land under the sale, relied on by the applicant as a muniment of title; and where this deed was attacked by one of the opposite parties to the proceeding, it was erroneous to refuse to sustain an exception of law asserting the disqualification of the examiner for these reasons, and moving that the examiner recuse himself.
Nos. 13371, 13379. DECEMBER 4, 1940. In 1939, Mrs. Anna S. Burgess and Morris Burgess instituted proceedings under the land-registration law (Code, § 60-101 et seq.), to register title acquired by prescription to 146 acres of land described, known as the J. W. Simmons place. W. H. Simmons interposed his objection. The case was referred to the official examiner. *Page 323 After hearing evidence the examiner reported in favor of the applicants. W. H. Simmons filed exceptions. The judge overruled the exceptions of law and submitted the exceptions of fact to a jury. One of the exceptions of law was to a ruling of the examiner holding himself not disqualified to try the case.
At the hearing certain newspaper clippings were produced, which for the first time disclosed to the attorney for the respondent that the examiner had acted as the attorney for Small in foreclosure of the security deed more than ten years before the hearing. The validity of the foreclosure and deed were in question, and to be passed on by the examiner. His disqualification to act was suggested by attorneys for the respondent. The examiner stated, in answer to questions by the attorney for the applicants: "After looking at those newspaper advertisements under which the foreclosure sale was had, my mind is refreshed as to that transaction. I can call it to mind. I will state to what extent my employment went in that case, what I was to do, and what I actually did do. I was at the bank at that time, was cashier of the Farmers Merchants Bank. Until I saw this advertisement I had no recollection of acting as attorney in this foreclosure. After I saw this advertisement, why it refreshed my recollection. Mr. Small came to the bank, Mr. A. T. Small, and left with me this deed with power of sale, security deed, said he wanted it advertised; and I prepared the advertisement and ran it four weeks, and drew the deed and forwarded it to Mr. Small at Macon, and I never heard of it since. I was acting under his instructions as to what to do, as to what extent to go. I advertised the property for sale as shown there in this advertisement. The property was auctioned off before the court-house door in accordance with that advertisement. The foreclosure deed was drawn by me and forwarded to Macon for execution; and that was the end of my employment. I had nothing to do with the deed being signed, as to who it was to be signed by, or anything like that. So if there is any question as to the validity of the foreclosure deed in question, or its witnessing, or record, or anything like that, I had nothing at all to do with that."
After cross-examination, the attorney for the respondent stated: "My point is that you prepared that foreclosure deed; the foreclosure deed is dated March 25, or rather it recites that it is dated the 25th day of March, 1920. The only deed to secure debt that *Page 324 was ever executed by J. W. Simmons to Mrs. R. E. Small is dated the 27th day of March, 1920. The advertisements have the correct date, March 27, but the foreclosure deed has not." The examiner agreed as to these dates. "You will recall on the previous hearing that we objected to the introduction in evidence of that deed, by reason of the fact that there was a deed to secure debt recited as dated the 25th day of March, 1920. Thereafter the petitioners introduced in evidence what they called a ratification deed, and we objected to it, and we objected to that too; and your honor let it in, ruling that you thought if there had been a mistake previously, that Mr. Small had a right to correct that by a ratification deed." The examiner agreed to that statement. "We take the position that the rights were fixed by that first deed, and that nothing he did after the institution of these proceedings could better the title of Mrs. Burgess and her son; so it seems to me that there is under investigation a question which involves a proceeding in which your honor acted as attorney, and therefore you are disqualified. You know I have the utmost confidence in you, but it just puts us in a bad shape to present it on arguing the case." The examiner then stated: "I would like to state right there, that on the former hearing I had no recollection of having acted as attorney in this case." The attorney for respondent stated: "I am sure of that, or you would have said so right then." Whereupon the attorney for the applicants stated: "Let me enter this statement, that the fact that the foreclosure deed stated that the mortgage deed was dated the 25th day of March, 1920, whereas in truth and in fact the mortgage deed was dated the 27th day of March, 1920, and that the undisputed evidence in this case shows that there was only one mortgage deed ever given by J. W. Simmons to Mrs. R. E. Small, that the difference in the date shown in the foreclosure deed from the actual date of the mortgage deed was immaterial, a typographical error, which is cured by the fact that undisputed evidence in the case shows that there was only one deed given by J. W. Simmons to Mrs. R. E. Small, which could have been foreclosed in pursuance of the deed, the mortgage deed dated the 27th day of March, 1920, and that the foreclosure deed referred to the particular land that is described in the mortgage deed, and the advertisement of the sale, foreclosure sale, and correctly describes the mortgage deed under which the property was sold." *Page 325
The examiner announced: "Under the facts I do not think I am disqualified in the case." He so ruled in his tenth conclusion of law. The respondent excepted to that conclusion, saying: "Under the undisputed evidence as shown herein the examiner was and is disqualified to act, and that this evidence as taken down should be recommitted or submitted to another examiner appointed by the court, for his examination and report, and that the findings of fact and conclusions of law of the examiner herein should be treated as null and void. One of the most important points of this case is whether or not the foreclosure deed from G. L. Small, as attorney in fact for J. W. Simmons, to G. L. Small, was a valid foreclosure deed. The invalidity asserted by your objector was that it referred to the power of sale contained in a deed to secure debt which was nonexistent. The petitioners claim that that error had been cured, first, by evidence showing that there was only one deed to secure debt executed by J. W. Simmons to Mrs. Small; and secondly, by the ratification deed. The examiner was the attorney who prepared that deed; the attorney who made the mistake in the date; so your objector asserts that under the law he can not in the capacity of examiner or judge pass on whether his mistake was a vital one; and if so, whether or not the mistake has been cured by the ratification deed."
The jury returned a verdict sustaining the exceptions of fact, and a judgment denying the application for registration was rendered. The applicants' motion for new trial, on the general grounds, was overruled, and they excepted. By cross-bill the defendant excepted to the overruling of his exceptions of law. In Collier v. State, 115 Ga. 803 (42 S.E. 226), it appeared that during the trial certain demonstrations were made in the court-room, and subsequently both in the court-room and the court-yard while the jury were considering the case. It was there ruled that the plaintiff in error did not have a fair and impartial trial in the manner contemplated by law, which is guaranteed to him by the constitution of this State; and whether the verdict was or was not supported by the evidence, it must for this reason be set aside. In the opinion Mr. Justice *Page 326 Little said: "Without any reference to the correctness or incorrectness of the verdict rendered in the case under the evidence which was submitted, we must, in deference to the obligations which we have assumed, as we understand them, reverse the judgment of the court below, because the defendant's guilt has not been established by a fair and impartial trial in the manner contemplated by law." The principle underlying this decision is that if one has not had a fair and impartial trial in the manner contemplated by law and guaranteed to him by the constitution, a new trial will be granted without reference to the correctness or incorrectness of the verdict. It is as essential to a fair and impartial trial that the trior (the case being one before an examiner under the land-registration act) not be disqualified to act, either from relationship or previous employment, as it is that the orderly progress of the case be not disturbed by boisterous outbreaks of the spectators in the court-room and in the court-yard. Smith v. Queen Insurance Co.of America, 41 Ga. App. 587 (153 S.E. 785), was a suit on a policy of insurance. It appeared that the judge of the city court of Eastman, before the filing of the suit, had represented the plaintiff in negotiations with the defendant, touching the cause of action sued on. In ruling that he was thereby disqualified to preside at any hearing of a judicial nature in the suit as subsequently filed by another attorney, the Court of Appeals ruled: "Such disqualification of the judge prohibited the entering by him of orders to extend the time of service and appearance, and to issue new process, since the propriety of such orders depended upon the diligence or laches of the plaintiff with reference to the perfecting of service before the return term." In the opinion it was said, that although the attorney held disqualified "had not represented the plaintiff in any case in court, with reference to the cause of action sued on," nevertheless "he had been `of counsel in the cause' within the meaning of the statute."
In East Rome Town Co. v. Cothran, 81 Ga. 359 (8 S.E. 737), where a sale of a trust estate in which minors were the beneficiaries was adjudged illegal, and an effort was made to legalize it by having the sale duly confirmed, it was held: "Granting that a sale made under an order obtained without representation of the minors might be duly confirmed at chambers, with such representation then had, the order of confirmation, if passed by a judge of the superior *Page 327 court who was of counsel when the original order was passed, would be voidable at the election of the minors after attaining majority." In the opinion Chief Justice Bleckley said: "It is urged upon us that as Judge Underwood was absent when the business was transacted by his copartner in the firm name, and knew nothing of it, and never received any compensation for the service which his copartner in the name of the firm rendered, and did not become judge till long afterwards, he was free from disqualification; but we think otherwise. What his partner did in the firm was done by the firm, and upon the firm responsibility; and this was so whether compensation was charged or not. When counsel, as counsel, render service gratuitously, and put themselves on record as of counsel for one of the parties, they are not thereafter eligible to adjudicate upon the results of such service, whether they have acted gratuitously or for compensation. Considerations of public policy are involved in the question. Freeman on Judgments, § 144 et seq." See Code, § 24-102. By analogy, the cases cited above are applicable to the issue presented in the instant case. The error here pointed out rendered all further proceeding nugatory. The judgments on both the main bill and the cross-bill of exceptions are reversed on the ground of the disqualification of the examiner, without prejudice to either party on another hearing before another examiner.
Judgments reversed. All the Justices concur.