Jones v. Johnson , 203 Ga. 282 ( 1948 )

Where the alleged fraud occurred more than fourteen years prior to the date of the petition, and is based on matters duly recorded in the public records of the county, and no degree of diligence is alleged on the part of the plaintiffs to discover the alleged fraud, or that the petition is brought within seven years from the discovery thereof, the petition fails to allege a cause of action and was properly dismissed on demurrer.

No. 16059. FEBRUARY 10, 1948. In March, 1944, Elmore Jones and others, the plaintiffs in error, filed an action for the partition of described lands, alleging that the plaintiffs and Delia Johnson, the defendant in error, are tenants in common, each owning a one-fifth undivided interest. The petition sought division of the property in kind.

By amendment it was alleged: The parties are children of Silla Jones, who died in possession of the property. The defendant is in possession, claiming the land under a tax deed made by the sheriff to Emanuel County in 1922, the property being sold as the property of Silla Jones by virtue of a tax fi. fa. The tax deed and transfer to the defendant by the county is recorded in the deed records. The redemption of the property was at the direction of Silla Jones, "she appointing Delia Johnson as her agent to use her money which she gave her for that purpose to redeem the place for her, and that instead said Delia Johnson through fraud redeemed the place from the tax lien and had herself made as grantee instead of her mother Silla Jones. . . Silla Jones died in 1930." The property can not be divided by metes and bounds. It should be sold by commissioners appointed by the court.

The plaintiffs prayed that the tax deed and transfer be surrendered and canceled, and that the property be sold and the proceeds divided. The defendant's general demurrer was sustained and the petition dismissed. The exception is to that judgment. The petition does not contain any allegations as to when the defendant procured a conveyance of the land to her by Emanuel County, except that it is alleged that she was acting as the agent of her mother in securing such transfer, and that her mother died in 1930. It is further alleged that the tax deed and the transfer are recorded in the public-deed records in the same book and page. The plaintiffs having alleged that the defendant is in possession of the land and claiming under the tax deed and transfer executed prior to 1930 and duly recorded, the petition, construed most strongly against them on general demurrer, as it must be, clearly shows title by prescription in the defendant in error.

The plaintiffs in error rely upon an allegation that the defendant fraudulently had the title conveyed to herself instead of to their mother. The period of limitation applicable to an action for fraud in procuring the title to land is the same as that which would apply to an action for the land, to wit, seven years from the discovery of the fraud. Code, § 3-807; Cade v.Tate, 35 Ga. 280; Knox v. Yow, 91 Ga. 368 (5) (17 S.E. 654); Crawford v. Crawford, 134 Ga. 114 (67 S.E. 673, 28 L.R.A. (N.S.) 353, 19 Ann. Cas. 932). The petition does not contain any allegation that it is brought within seven years from the date of the discovery of the fraud; but even if such allegation were made, it does not appear that the plaintiffs used properly dismissed upon demurrer. Edwards v. Smith, 102 Ga. 19 (29 S.E. 129); Crawford v. Crawford, supra; Bennett v.Bird, 139 Ga. 25, 27 (76 S.E. 568); Bailey v. Freeman,140 Ga. 71 (78 S.E. 423); Brinsfield v. Robbins, 183 Ga. 258 (188 S.E. 7).

The contention of counsel for the plaintiffs in error that the plaintiffs and the defendant are tenants in common is not supported by the allegations of the petition that the defendant in error is in possession and claiming the premises under a tax sale and transfer.

Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness, and Wyatt, J., who took no part inthe consideration or decision of this case.