Bowers v. Dolan , 187 Ga. 653 ( 1939 )

1. The allegations of the petition were sufficient to show, as a matter of law, that the defendant obtained a judgment of the court of ordinary appointing him administrator of a named deceased person, and an order for sale of land, by falsely and fraudulently representing to that court that he was a creditor of the deceased. In such nape, in a proceeding in equity to set aside the orders, the petition was not subject to general demurrer for failure to allege in express terms the existence of actual fraud.

2. A judgment of the court of ordinary granting permanent letters of administration to one who is neither next of kin, nor a creditor, nor otherwise entitled to administration, may be set aside in a direct proceeding in equity, instituted by an heir at law, on the ground that the applicant falsely and fraudulently represented in his application that the facts' were such as to entitle him to appointment.

3. The fact that citation was published would not prevent the plaintiff, as sole heir at law, who had no knowledge of the application for letters of administration, from seeking in due time to have the judgment canceled.

4. According to the allegations, the plaintiff owed to the defendant no duty which should be performed as a condition, of obtaining the equitable relief sought,

5. While the petition did not pray in specific terms for cancellation of the judgments, still, under the allegations, the general prayer would be sufficient upon which to base such relief. The court did not err in overruling the demurrer to the petition.

No. 12666. FEBRUARY 23, 1939 REHEARING DENIED MARCH 9, 1939.

Equitable petition. Before Judge Thomas. Fulton superior court. November 10, 1938.

James W. Dolen filed a suit in equity against; Frank A. Bowers administrator of the estate of Katherine A. Dolen. The administrator tiled general and special demurrers, which the court overruled, and he excepted. In the brief filed by his attorney in this court no reference is made to the special grounds, and therefore the only question presented is whether the petition alleged a cause of action and was thus sufficient to withstand the general demurrer. The petition alleged the following: The plaintiff is and has been for more than twenty-three years the owner in fee simple of a described tract of land situated in Fulton County, Georgia. He acquired the title to the property by inheritance from his sister Katherine A. Dolen, who was the owner thereof in fee simple at the time of her death, and who died intestate in the. year 1915, leaving the plaintiff as her sole heir at law. At the time Katherine A. Dolen died there were no just claims or debts against her estate; and none have arisen since her death, except taxes which have accrued against the property involved in this case. Frank A. Bowers, without plaintiff's knowledge or consent, has proceeded to administer the estate of Katherine A. Dolen, having himself appointed administrator; and that this administration is proceeding illegally and is void by reason of the following facts: About twenty-three years after the death of Katherine A. Dolen, the defendant, without the knowledge or consent of the plaintiff, did return this property "by N. O. D. return" to the tax-receiver of Fulton County, Georgia, for taxes for the years 1931-1937, inclusive. "Said returns were made in the name of Katherine A. Dolen, although the defendant, petitioner charges upon information and belief, knew at said time that the said Katherine A. Dolen was not in life and had been dead For more than twenty years; but notwithstanding this knowledge on the part of the defendant herein, he instructed the tax-collector of Fulton County. Georgia, to issue tax executions on said N. O. D. returns, and said executions were issued against Katherine A. Dolen, and were paid by the defendant herein, Frank A. Bowers, and said executions were transferred to the said defendant on or about February 15, 1938." A short time thereafter, the defendant applied for letters of administration of the estate of Katherine A. Dolen, alleging that she was deceased and was indebted to him in the sum of about $100 and further alleging himself to be a creditor of the estate of Katnerrae A. Dolen. On these allegations, at the April tens, 1938, of the court of ordinary of Fulton County, the defendant was appointed administrator of her estate, and qualified by giving bond with security.

After having been so appointed as Administrator the defendant did apply for, and was granted at the May term, 1938, of such court of ordinary, an order authorizing him to sell the real estate in question at public outcry in June, 1938. He was not, as alleged by him in the court of ordinary, a creditor of the estate of Katherine A. Dolen "as contemplated by law," and therefore was not legally entitled to be appointed administrator. The plaintiff did not know or have any notice of the proceedings in the ordinary's court, nor did he in any way induce, entice, or ask that the taxes for the years mentioned be paid by the defendant, and such payment on the part of the defendant was "a voluntary payment, and as such not legally recoverable." The fi. fas. issued by the tax-collector and transferred to the defendant are null and void, in that they were issued against a deceased person, and should have been issued against your petitioner, who is the legal owner of said property, and who owes the taxes on said property. The payment of said taxes by the defendant in the name of Katherine A. Dolen was a voluntary payment on his part, and the executions issued on the "N. O. D. returns" were null and void; and therefore the defendant was in no way a creditor of the estate of Katherine A. Dolen, and his appointment as such administrator was illegal and of no force and effect and amounts to a legal fraud upon the plaintiff, in that the property of the plaintiff is without his consent, or authority being administered and subjected to the expense and cost of administration, and to protect himself plaintiff would have to purchase the property at the sale by becoming the highest bidder and paying to the defendant the amount of the bid, which would be subject to administrator's fees, attorney's fees, and costs of administration, none of which the plaintiff has authorized. Unless a court of equity intervenes and enjoins the sale, the plaintiff will be irreparably damaged and injured. Because of his poverty he is without funds with which to protect himself at said sale by purchase of the property, should it become necessary for him to do so. The petition contained prayers: (a) for process; (b) "that the defendant be temporarily restrained and permanently enjoined from selling said property;" (c) "Hint the defendant be permanently enjoined from proceeding to administer your petitioner's property above set out" and "for such other and further relief as in the premises may be just and proper."

G. S. Peck, for plaintiff in error.

Kennedy, Campbell Therrell, contra.

1. The petition does not in terms allege that the defendantfalsely and fraudulently represented himself to be a creditor of the estate of Katharine A. Dolen, for the purpose of obtaining his appointment as her administrator, but it does aver specific facts from which no other inference is reasonably deducible except that he was not a creditor and knew it, and that he was a mere intermeddler with fraudulent motive. True it is that the plaintiff charged only upon information and belief that the defendant knew that. Katherine A. Dolen was not in life at the time he made the tax returns in her name, but this was nevertheless an averment of actual knowledge on his part, and for the purpose of demurrer the averment is not qualified or weakened by the circumstance that it was made only upon information and belief. It is still a positive allegation, which the plaintiff in effect declares himself willing to make because of claimed information and belief regarding the matter. There is an important difference between this form of allegation and one in which the plaintiff merely alleges that he has been informed and believes thus and so. In the latter case there is only a statement of information and belief, which does not amount to a positive allegation of fact itself. "The pleader must allege the fact on information and belief, and not that he is informed and believes that the fact exists." 21 C. J. 395, § 410; Nance v. Daniel, 183 Ga. 538, 543 (189 S.E. 21). The Code provides that all lands in this State which are subject to taxation shall be returned by the person owning the same, his agent, or attorney. § 92-6206. If Katherine A. Dolen was dead, the defendant could not have acted as her agent or attorney, and, as alleged in the petition, he knew that she was dead. The petition further alleged that Katherine A. Dolen died intestate, and that the plaintiff, John W. Dolen, was her sole heir at law; also that the plaintiff had not authorized or consented to the acts of the defendant, and was in fact without knowledge thereof. Under the allegations, the returns and the executions were void; and the same is true of everything that followed, as related to payment of taxes and transfer of executions.Miller v. Brooks, 120 Ga. 232 (47 S.E. 646); Ayer v. Chapman, 146Ga. 608 (91 S.E. 548) ; Wilson v. Eatonton, 180 Ga. 598 (180 S.E. 227). Therefore the defendant was not a creditor of the estate of Katherine A. Dolen, as alleged in his application for appointment as administrator (Code, § 20-1007); and since, under the specific facts alleged, the petition is not open to any other construction except that the application wag fraudulent, it is unimportant that the petition did not allege actual fraud in express terms. Sutton v. Adams, 180Ga. 48, 62 (178 S.E. 365); Abercrombie v. Hair, 185 Ga. 728, 733 (196 S.E. 447).

2. It has been held several times by this court that a judgment of the court of ordinary granting permanent letters of administration to one who is neither next of kin, nor a creditor, nor otherwise entitled to administration, may be set aside in a direct proceeding in equity, instituted by heirs at law, on the ground that the applicant falsely and fraudulently represented in his application that the facts were such as to entitle him to appointment. Wallace v. Wallace, 142 Ga. 408 (2) (83 S.E. 113); Brawn v. Parks, 169 Ga. 712 (151 S.E. 340, 71 A. L. R. 271; Donehoo v. Standifer, 180 Ga. 181 178 S.E. 455. Under these authorities, the allegations in the present case were sufficient to state a cause of action for setting aside the appointment of the defendant as administrator and the order for sale, unless the plaintiff is barred upon some other ground aside from the question of fraud, as contended by the defendant. This conclusion is not opposed to any of the following decisions, which are relied on by counsel for the plaintiff in error: Bryan v, Walton, 14 Ga. 185 (11); Bailey v. Ross, 68 Ga. 735;Sanders T. Slaughter, 89 Ga. 34 (14 S, E. 873); Wash V.Dickson, 147 Ga. 540 (94 S.E. 1009); Harris v. Shelton, 151Ga. 615 (107 S.E. 842). None of these cases involved allegations of fraud such as are found in the present case. Nor does the instant petition attempt a collateral attack upon the judgment or judgments of the court of ordinary. On the other hand, it is a direct proceeding in a court of equity, with proper parties, having for its purpose the cancellation of a judgment, or judgments obtained by fraud. "The judgment of a court of competent jurisdiction may be set aside by a decree in equity, for fraud, accident, or mistake, or the acts of the

adverse party unmixed with the negligence or fault of the complainant." Code, § 110-710. See § 37-219. A judgment of a court of ordinary is no exception to this rule. White v. Roper, l76 Ga. 180 (2), 187 (167 S.E. 177). .See also Wade, v. Watson, 133 Ga. 608 (66 S.E. 922) ;Jordan v. Harber, 172 Ga. 139, 140 (4) (157 S.E. 652).

3. There is no merit in the contention that the plaintiff is barred by his own negligence. It is insisted in this connection that he should have kept himself informed, either through a local agent or by subscribing for the official organ of Fulton County and reading the legal notices. In Davis v. Albritton, 127 Ga. 517, 520 (56 S.E. 514, 8 L,. R. A. (N.S.) 820, 119 Am. St. Rep. 352), it was said: "If, as alleged and sought to he proved, a fraud was perpetrated by knowingly and falsely pretending that the decedent resided [in a county different from that of his actual residence], the fact that citation was published would not prevent the plaintiff, who had no knowledge of the proceeding, from moving in due time, in the court where the judgment was rendered, to have it set aside." This ruling was repeated in substance in the following cases, each being a suit in equity to set aside a judgment rendered in a different court: Neal v. Boykin, 129 Ga. 676, 683 (59 S.E. 912, 121 Am. St. Rep. 237); Powell v. McKinney, 151 Ga. 803 (2), 810 (108 S.E. 231); Walker v. Hall, 176 Ga. 12 (5) (166 S.E. 757);Jackson v. Jackson, 179 Ga. 696 (3) (177 S.E. 591). These decisions probably rest upon the idea that the fraud involved was not to be presumed, and consequently there was no duty to anticipate or watch for it. Cf. English v. Poole, 31 Ga. App. 581 (4) (121 S.E. 589). The case of Beddingfield v. Old National Bank Trust Co., 175 Ga. 172 165 S.E. 61, relied on by counsel for the plaintiff in error, was materially different from these cases and also from the present case. In that case the bank, a resident of Michigan, sued in equity to set aside a judgment, awarding a year's support to the widow of its deceased Georgia debtor. When a man dies and leaves a widow, she is entitled as a matter of law to a year's support out of his property. In theBeddingfield case the right person) as widow filed the claim, and the only controversy related to the amount granted, the plaintiff contending that an excessive amount had-been obtained as the result of fraud. In these circumstances it was held that the judgment was binding upon the non-resident

creditor, the usual citation having issued. In the present case, however, the allegations were; sufficient to show that there was no foundation whatever for the proceeding, and that the plaintiff was not negligent in failing to anticipate it by employing a local agent or reading the legal notices.

4. Nor can we sustain the contention that the plaintiff has failed to do equity in not paying or tendering to the defendant the sums which he assumed to pay as taxes upon this property for the several years stated. From what wag said in the first division, the payments were both voluntary and void so far as satisfying the taxes on this property. According to the allegations, the plaintiff does not owe the defendant anything. On this question the present case is distinguished from the many cases heretofore decided by this court in regard to valid tax claims and the necessity of tender. Nor is it a matter of defense to this defendant that the plaintiff may not have paid the taxes to the State and county for any period since the death of Katherine A. Dolen. That is a matter between the plaintiff and the taxing authorities, and the defendant can not object that the plaintiff has failed to do equity, except as to himself. "He who would have equity must do equity, and give effect, to all equitable rights in the other party respecting the subject-matter of the suit." Code, § 37-104.

5. There is another matter, which, though not pressed by the plaintiff, would seem to require some comment, if the petition is to be sustained. The plaintiff prayed first, for process; second, for injunction; and third, for injunction and "for such other and further relief as in the premises may be just and proper." It may be true that unless the plaintiff can and does obtain a cancellation of the judgments passed by the court of ordinary, he would not be entitled to injunction. Under the allegations the basic relief of which he is in need is cancellation of these judgments, and for this he does not in specific terms pray. In the nature of the allegations made, however, this omission is not fatal. "Under a general prayer in an equity case, the plaintiff may have such relief as is consistent with and entirely within the scope of the pleadings." Broderick v. Reid, 164 Ga. 474 (2), 483 (139 S.E. 18). The general prayer made in the present case would be sufficient upon which to base a decree of cancellation..McGarrah V. .Bank of Southwestern Georgia, 117 Ga. 556 (43 S. E, 987);Dollar v. Fred W. Amend Co., 184 Ga. 432, 437 (191 S.E. 696). The court did not err hr overruling the general demurrer.

Judgment affirmed. All the Justices concur.