Hadaway v. Hadaway , 192 Ga. 265 ( 1941 )

1. The first count of the petition stated a cause of action based upon the theory of an implied trust, whether or not upon any other theory.

(a) Such right of action did not appear to be barred either by limitation or by laches.

(b) The first count was not subject to demurrer for any reason urged.

2. A suit for cancellation of a deed to land, where the plaintiff is not in possession and has never been, must ordinarily be brought within seven years. Under this rule, the second count appeared to be barred by limitation. This count did not, as the first count, allege facts showing that the period had not run. The court erred in not sustaining the demurrer based upon that ground.

3. Where an owner of land sells and conveys it without collecting the purchase-money, and dies intestate before the purchase-money is paid, the right of action therefore is ordinarily in his administrator, and not in his heirs at law.

4. In the third count the plaintiff sought as an heir at law to recover an alleged proportionate part of such purchase-money. The allegations did not show any right on his part to sue, and the court erred in not sustaining the general demurrer to that count.

No. 13653. MAY 19, 1941. H. E. Hadaway filed a suit in equity against Miss Ada Hadaway. The petition as amended was in three counts, the allegations being substantially as follows:

First count. The defendant is the grantee and Mrs. J. W. Maloy, deceased, was the grantor of two purported deeds, copies of which are attached as exhibits A and B. Petitioner was a full brother and the defendant was a half-sister of the grantor, who died intestate on March 24, 1932. The grantor was aged, afflicted with cancer and other infirmities for a long period of time before and at the time of the execution of the said purported deeds, and said grantor's condition continued in a progressive state to her death. By reason of these afflictions the grantor's body was enfeebled and her mind impaired to such extent that she had little or no will power, and lacked sufficient physical strength and mental faculties to attend to her business affairs at the time of the alleged execution of said purported deeds. The defendant, being the youngest, the ablest, and the member of the family possessing the most business experience, had for a long period of time before the alleged execution of the purported deeds, attended to the business affairs of the grantor. As a consequence of this relationship the grantor placed great confidence and trust in the defendant. The grantor had several other infirm brothers and sisters, and the defendant knew that it was the desire and intention of the grantor to assist them. While the grantor was thus enfeebled in body, afflicted in mind, and possessed of little or no will power but reposing great confidence in the defendant, the purported deeds were arranged and their alleged execution procured by the defendant through the undue and improper influence of her mastermind and her fraud perpetrated upon the grantor and her trusting few advisers, in the following manner: (a) By false statements intentionally misleading the grantor to believe that she would hold the properties in trust for the benefit of all the heirs, and that she could thus and would better manage for them, as well as avoid the expenses and trials of a regular administration of the estate. (b) By false statements and promises misleading the grantor to believe that she would carry out the known and expressed intentions of the grantor. (c) By falsely misleading the grantor to believe that she would distribute the estate in the proper manner to the proper heirs, and not claim it for her own.

Petitioner moved to Atlanta in order that he and his wife could care for the grantor, and they did so until her death. The grantor was moved from the hospital about a week before her death; and because her early death was expected, both the purported deeds were executed after she was brought home from the hospital. The grantor of the purported deeds had but recently been removed from the hospital in a dying condition, was in this condition at the time of the alleged execution of said deeds, and was then under the influence and effect of opiates and other pain-alleviating drugs to such an extent that she did not have the mental capacity required by law to execute said deeds or to deliver them. Said purported deeds were placed in the custody of her sister, Mrs. Elizabeth Elam, and were not delivered to the defendant until after the death of the grantor. Besides the funeral expenses of Mrs. Maloy, about $700 was owed by her estate. The defendant agreed and allowed your petitioner to manage the estate, pay the monthly installments of indebtedness, and distribute the remainder among the heirs until all of the debts had been paid, and in other ways the defendant recognized the conveyances as the trusts they were intended to be. The indebtedness was fully paid on November 21, 1936, and it was then that the defendant first asserted her claim of absolute ownership of said property under the purported deeds. The property now claimed by the defendant under said deeds was the entire estate left by the said Mrs. Maloy. There has never been an administration of said estate. The defendant has received and appropriated to her own use the entire income from said property since January 30, 1938. By reason of the premises aforesaid, said deeds should be declared null and void, canceled and set aside. Petitioner charges further that the defendant has not sufficient property above the homestead exemption of realty and personalty to respond to a recovery of any judgment that petitioner may obtain against her in this behalf; said defendant supports a dependent female, and is entitled under present laws to avail herself of these exemptions; and is otherwise insolvent. In conclusion the petitioner prayed for appointment of receiver and for injunction.

Second count. The defendant is the grantee, and Mrs. J. W. Maloy, deceased, is the grantor of two purported deeds, copies of which are attached as exhibits A and B. The grantor died intestate on March 24, 1932. Petitioner is an heir at law of said deceased, and as such is entitled to one sixth of said estate. No debts are owed by said estate, and there has been no administration thereof. All of the heirs of the said estate are sui juris. The grantor of said purported deeds had but recently been removed from the hospital in a dying condition, was in this condition at the time of the alleged execution of said deeds, and was also then under the influence and effects of opiates and other pain-alleviating drugs to such an extent that she did not have the mental capacity required by law to execute said deeds or to deliver them. The properties alleged to have been conveyed by said deeds were the entire estate of the deceased grantor. Said deeds were given to an agent of the grantor to be held subject to the grantor's wishes until after her death. Said deeds were not delivered to or accepted by the grantee until after the death of the grantor. The plaintiff prayed that these deeds be canceled, and that petitioner have such other and further relief as may seem meet and proper to the court.

Third count. Petitioner is an heir at law of Mrs. J. W. Maloy, deceased, and as such is entitled to one sixth of her estate. Mrs. Maloy died intestate, and her estate has never been administered. Said estate owes no debts, and the heirs at law are sui juris. The defendant bought certain realty from Mrs. Maloy, and thus obtained deeds of conveyance, copies of which are attached as exhibits A and B. Said deeds were for the considerations of $3000 and $3500 respectively. None of the purchase-price has been paid to the grantor or to her estate. By reason of the foregoing facts, the defendant is indebted to petitioner in the sums of $1083.33 principal and $774.86 interest. Said defendant is justly indebted to petitioner in the total sum of $1858.19, and said sum is due and unpaid, and said defendant fails and refuses to pay the same. In this count the plaintiff prays that "he have judgment in the amount herein stated."

The deeds referred to, copies of which were attached as exhibits, each conveyed land in the City of Atlanta. One is dated June 4, 1928. The recitals in the other leave it uncertain whether it purports on its face to have been executed in 1931 or in 1932.

The defendant demurred to each count, on the following grounds: (1) No cause of action; (2) suit barred by limitation, and (3) barred by laches. The court overruled the demurrer, and the defendant excepted. 1. The first count of the petition stated a cause of action based on the theory of an implied trust, whether or not upon other theory. Code, § 108-106; Brown v. Doane,86 Ga. 32 (12 S.E. 179, 11 L.R.A. 381); Jenkins v. Lane,154 Ga. 454 (115 S.E. 126). From the allegations it does not appear that the cause of action was barred by limitation. An action to impose or enforce an implied or constructive trust as to land must generally be brought within seven years from the time the cause of action accrues; but where the alleged trustee recognizes the trust and treats it as subsisting, suit may be brought at any time within seven years after notice of adverse claim, unless from the particular circumstances the claim is barred by laches. Wallace v. Mize, 153 Ga. 374 (2, 3) (112 S.E. 724); Roach v. Roach, 143 Ga. 486 (85 S.E. 703);McFadden v. Dale, 155 Ga. 256 (4) (116 S.E. 596); Purvis v. Johnson, 163 Ga. 698 (3, 5) (137 S.E. 50); Pickens v.Jackson, 152 Ga. 100 (2) (108 S.E. 536). According to the allegations, the suit was filed within less than seven years after notice of adverse claim, and therefore was in time. The petition did not show any kind of gift; and consequently there is no merit in the contention that the suit is barred under the Code, § 48-107, declaring that suits to avoid gifts obtained by undue influence of one standing in a confidential relation must be brought within five years.

Laches is an equitable defense, and a petition for equitable relief is not subject to demurrer on the ground of laches unless the allegations of fact affirmatively show such defense. "There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case is to be determined according to its own particular circumstances. . . Laches is not, like limitations, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced, an inequity founded on some intermediate change in conditions." Equitable Building Loan Association v. Brady, 171 Ga. 576, 585 (156 S.E. 222);Citizens Southern National Bank v. Ellis, 171 Ga. 717 (3-c) (156 S.E. 603); Bass v. Milledgeville, 180 Ga. 156 (178 S.E. 529); Dollar v. Fred W. Amend Co., 184 Ga. 432 (191 S.E. 696); Bleckley v. Bleckley, 189 Ga. 47, 58 (5 S.E.2d 206); 60 C. J., § 133. In the present case the first count did not show that the plaintiff is barred by laches. Under the allegations the plaintiff as an heir at law had the right to sue for enforcement of an implied trust to the extent of his proportionate interest in the realty. McClure Realty Investment Co. v. Eubanks, 151 Ga. 763 (108 S.E. 204);Stonecypher v. Coleman, 161 Ga. 403 (3) (131 S.E. 75). In the briefs there is no reference on either side to the allegations touching mental capacity of the grantor. There was no demurrer on the ground of duplicity. Nor was the petition fatally defective and subject to general demurrer because of discrepancy, as to dates, between the recitals in the deeds themselves and the allegations as to time. It could be true that the deeds were executed on dates different from those recited therein. The first count was not subject to demurrer on any ground urged.

2. The second count was based on the theory that the deeds were void because they were "given" by the grantor to her ownagent, to be held subject to the grantor's wishes until after her death, and were never delivered to and accepted by the grantee until after the death of the grantor. No argument has been presented on the question whether in these circumstances the deeds would be void as conveyances of title, this being apparently assumed by counsel on both sides; and therefore we make only passing reference to this question. Seemingly the petition stated a cause of action for cancellation on this ground. Wellborn v. Weaver, 17 Ga. 267 (10) (63 Am. D. 235); Maddox v. Gray, 75 Ga. 452; Martin v. Wall,141 Ga. 201 (2) (80 S.E. 629); Baxter v. Chapman, 147 Ga. 438 (94 S.E. 544); Daniel v.Stinson, 179 Ga. 701 (177 S.E. 590); Plowden v. Plowden,52 Ga. App. 741 (184 S.E. 343). Regardless of this question, however, the second count was subject to demurrer for the reason principally urged, namely, that it appeared to be barred by limitation. This was not an action quit timet under the Code, § 37-1410. The petition does not allege whether the plaintiff or the defendant is in possession of the land, or that the defendant did not enter into possession on death of the grantor and delivery of the deeds. Since the petition is being considered on demurrer, it must be construed most strongly against the pleader; and when it is so construed we can only assume that the plaintiff was not in possession at the time the suit was brought and has never been in such possession. Cf. Carter v. Walden,136 Ga. 700 (71 S.E. 1047); Cleaveland v. LaGrange Banking Trust Co., 187 Ga. 65 (3) (200 S.E. 137). In the circumstances, according to previous decisions of this court, a petition for cancellation of the deeds should have been brought within seven years. Whittle v. Nottingham, 164 Ga. 155 (3), 161 (138 S.E. 62). See also Griffin v. Stephens, 119 Ga. 138 (46 S.E. 66); Lundy v. Lundy, 141 Ga. 387 (81 S.E. 129). The second count alleged no facts to prevent the running of the period, as did the first count; and so the court erred in not sustaining the demurrer to the second count on the ground it appeared to be barred by limitation.

3. In the third count the plaintiff seeks, as one of the heirs at law of the grantor, to recover an alleged proportionate part of the purchase-money, basing his claim on the theory of a sale with the purchase-money unpaid. Each of the deeds appears to have been executed under seal, and according to this count they were accepted by the grantee. It is contended by the defendant that an action for the purchase-money in such case should be brought within four years. The plaintiff insists that the period is twenty years. As between the parties in this case, we think no decision should be made upon these contentions. See generally, Code, §§ 3-706; 3-703; Stansell v. Corley, 81 Ga. 453 (8 S.E. 868); Kytle v. Kytle, 128 Ga. 387 (3) (57 S.E. 748);Whittle v. Nottingham, supra; Persons v. Dallas,178 Ga. 778 (174 S.E. 699); Brice v. National BondholdersCorporation, 187 Ga. 511 (2) (1 S.E.2d 426). We refrain from any ruling thereon, because it is clearly apparent that the plaintiff as an heir at law has no right at all to sue in such case. This particular count is an action at law, notwithstanding it is placed in a petition containing equitable counts. Under the allegations of fact, any cause of action for the purchase-money would be personalty, and the right to sue would be in an administrator. Code, §§ 3-108, 113-901; Bryant v. Atlantic Coast Line Railroad Co., 119 Ga. 607 (46 S.E. 829); Massell Realty Co. v. Hanbury, 165 Ga. 534 (5), 552 (141 S.E. 653); Bowen v. Lansing, 129 Mich. 117 (88 N.W. 384, 57 L.R.A. 643, 95 Am. St. R. 427); 9 R. C. L. 82, § 77; 11 R. C. L. 123-124, § 128. See especially Brown v. Mutual LifeInsurance Co., 146 Ga. 123 (90 S.E. 856). Otherwise, as to heirs at law basing their claim upon the interest of a deceasedvendee. Weems v. Kidd, 37 Ga. App. 8 (2) (138 S.E. 863); Bowen v. Lansing, supra. Whether an heir at law of a grantor could sue to recover unpaid purchase-money under any circumstances, no special facts were alleged to show the right in this case. See Denny v. Gardner, 149 Ga. 42 (99 S.E. 27);Holt v. Industrial Life Health Insurance Co., 182 Ga. 563 (186 S.E. 193).

4. The court erred in not sustaining the general demurrer to the third count. Since the foregoing rulings would appear to be controlling on the case as now presented, it is unnecessary to decide more as to any one of the several counts.

Judgment affirmed in part and reversed in part. All theJustices concur.