Waters v. Waters , 124 Ga. 349 ( 1905 )

CANDLER, J.

(After stating the facts.) 1. The question, whether Mrs. Waters could, under the constitution of 1868, obtain a valid homestead as the “head of a family” was not raised by counsel either at the trial below or upon the hearing before this-court, but both sides treated the homestead set apart to the plaintiff as in every respect valid. Without going into this question, then,, we come to consider the effect of the deed made by Mrs. Waters to-her son, in which she undertook to convey the fee to the land to her son. While the plaintiff could not convey the homestead property in such a way as to defeat the rights of her minor children therein,, her deed was sufficient to pass out of her whatever claim to, or interest in, the land that she may have possessed. Huntress v. Anderson, 110 Ga. 427. There is no merit in the contention that the deed was void as to the plaintiff because it sought to convey homesteád property.

2. The only other reason assigned why the deed from the plaintiff to her son should be held void is that fraud was committed in its procurement. It is extremely doubtful if the allegations of the petition as to the alleged misrepresentation by Waters of the legal effect of the Preetorius mortgage-make such a case of fraud as to warrant the cancellation of the deed made to him in consequence of such misrepresentation. But granting, for the*sake of the argument, that they do, more than twenty-six years elapsed between the commission of the alleged fraud and the filing of the present suit, and it does not appear at what time during that long period the plaintiff discovered that she had been defrauded. Apparently nothing was done to prevent her from acquainting herself with the truth as to the legal effect of the so-called Preetorius mortgage. It was incumbent upon her, in filing her petition, to show that her cause of action was not barred. This was not done. Her pleádings must be construed most strongly against her; and therefore it will be presumed that she discovered the alleged fraud at such a time in the past as that her right of action has expired by limitation.

3. As to the prayer that the plaintiff be decreed to have a life-estate in the property in dispute, it is sufficient to say that this would be nothing more or less than engrafting a' parol agreement upon a written deed and changing the estate conveyed by the written instrument. The relief sought is not available without a reformation of the deed from the plaintiff to her son, which was not prayed (Perkins Lumber Co. v. Wilkinson, 117 Ga. 394); and reformation of the deed could not be had, because it appeared that there was no intention to insert in the instrument any provision of the character indicated. Ligon v. Rogers, 12 Ga. 281..

4. As to the various other prayers of the petition, it does not appear that the plaintiff’s possession of the premises has been interfered with, nor does it appear that the plaintiff has any right which she may not assert in defense to an action of ejectment or other legal proceeding that may be taken to oust her from possession. “Equity'will not enjoin the proceedings and processes of a court of law, unless there is some intervening equity, or other proper defense, of which the party, without fault on his part, can not avail himself at law.” Civil Code, §4915; 7 Enc. Dig. Ga. R. 340, 369, Should Deal make any effort to oust the plaintiff from possession of the land, it will then be time for her to assert any rights she may have. The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

All the Justices concur.