Cooper v. Aycock , 199 Ga. 658 ( 1945 )

1. The plaintiff's own testimony, considered with facts that appear without dispute in the record, showed as a matter of law that his alleged claim of implied trust and right to an accounting were barred by laches, as claimed and pleaded by the defendant.

2. The verdict for the defendant being demanded, and none of the errors alleged to have been committed on the trial being of such nature that they could have affected the result under the evidence that was introduced, the judgment refusing the plaintiff's motion for a new trial must be affirmed, regardless of such alleged errors.

Nos. 15162, 15163. JULY 9, 1945. REHEARING DENIED JULY 23, 1945. On August 5, 1943, G. W. Cooper Sr. filed an equitable petition against W. M. Aycock, alleging that on or about June 23, 1929, he was approached by the defendant, who sought a loan for one C. W. Ford; that he refused to loan Ford any money, but subsequently, for the sum of $400 he purchased Ford's equity in described realty, subject to a first security deed in favor of spratlin, Harrington Thomas, securing an indebtedness of $2625, and a second security deed in favor of J. C. Williams, securing a series of promissory notes aggregating $650; that at his direction Ford executed a warranty deed covering his equity to the defendant Aycock, in whom the plaintiff had implicit confidence, and at that time Aycock orally agreed with the plaintiff to manage the property for the plaintiff collect the rentals, and out of them pay the taxes, insurance premiums, interest on outstanding loans, and so forth; that the defendant went into possession of the property for the purpose of thus managing it for the plaintiff; that he has collected rentals up to the time the suit was filed, and has not accounted for them; that on or about October 2, 1930, he notified the plaintiff that it would be necessary to liquidate the indebtedness due to Williams, and the plaintiff furnished him the sum of $400 for the purpose of satisfying this indebtedness; that, on paying the $400 to Williams in satisfaction of this indebtedness, the defendant took from Williams a conveyance and assignment, conveying to himself the interest of Williams; that he furnished no part of the $400 paid in extinguishment of the debt, and fraudulently, without the knowledge of the plaintiff, obtained from Williams in his own name a transfer of the loan deed representing the indebtedness. The plaintiff prayed for an accounting, a receiver, an injunction, and a decree of title.

The defendant answered, admitting the alleged transaction between the plaintiff and Ford, but contending that the plaintiff did not purchase the property from Ford, but loaned Ford $400, taking a deed to the described property as security, subject to the first and second mortgages or security deeds. The defendant further averred that he thereafter collected the rents for the plaintiff, paying therefrom insurance, taxes, and interest on the loans, and delivered the balance of the rents to the plaintiff, until the first mortgage in favor of Spratlin, Harrington Thomas fell due about April, 1932, at which time the plaintiff refused to put any more money in the property and told the defendant to keep the property; that, accepting and relying upon the statement of the plaintiff, he secured another loan on the property in his own name and paid off the first mortgage; that, prior to this time, on or about October 2, 1930, the second mortgage had fallen due, and at that time the plaintiff, through the defendant, advanced the sum of $455 to Williams in satisfaction of the second mortgage; that the defendant, acting as agent for the plaintiff, accounted for all rentals until the plaintiff orally relinquished all right, title, and interest he had in the property, and thereupon the defendant for the first time took possession of the property in his own right, and placed a new loan and repairs on the property; that from 1932 until this suit was instituted, the plaintiff made no claim or demand upon the defendant, and the defendant has since 1932 been in possession of the property, paying the taxes and insurance thereon. He alleged further: "The title to said property thus became the absolute fee-simple title of this defendant. The plaintiff by his word and act was and is estopped and can not assert title to said premises. Plaintiff is further precluded and estopped by his words, acts, and the lapse of time from disputing defendant's title or laying any claim thereto. By reason of the facts herein set forth, plaintiff, even if he had a right, has lost the same by reason of estoppel and unreasonable delay or laches."

On the trial, the plaintiff, who introduced no other witness besides himself, testified as follows: "Along about 1929 I had a transaction looking to the transfer to myself of a piece of property from Mr. Ford, known as 1386 Belmont Avenue. On or about June 21, 1929, Mr. Aycock came to my office in the old Austell Building, and he said he dropped by to see if I would sign a paper with Mr. Ford for some money. I asked him how much he wanted, and he said $600, but he had some money. I finally declined, telling him that I had a little money, and if Mr. Ford would secure me I would let him have as much as $400. He said he did not know whether Mr. Ford could do that or not, but he would go back and see. A little later that day, or perhaps the next day, he came back and said he had equities in two or three pieces of property out at Capitol View. I said, ``If he can do that, you come by in the morning and we will go to the bank and get the money.' So he did, and me and him went to the bank and got the money and carried it over to Mr. Ford's office in the Connally Building. Charlie [Ford] got down to make the papers out himself, and I looked up to Mr. Mack [Aycock], and I said, ``Mack, will you see after this property for me?' He said, ``Yes, I will see after it for you.' I said, ``Charlie, just put it in your name then without coming to me with everything except a major fire.' He said he would transfer the equity in that property for $400, and at my request he did transfer it in Mr. Aycock's name. . . The transaction I related between myself and Mr. Aycock was all that was said to him. I then went to the City Hall to ascertain about the taxes, and I found these two or three pieces of property all under one head. I told the tax assessor that I was interested in one of the pieces of property, and asked him how I could arrange that in order to get the taxes paid on it, et cetera. He said he would separate it; so he did — made an assessment. Then I went and told Mr. Aycock what I had done and he was to pay it out of the rents, et cetera, and the repairs, taxes, insurance, and everything, and account to me for the remainder of the rent. I just left the papers with Mr. Aycock. Mr. Ford drew those papers and handed them over to Mr. Aycock. Mr. Ford did not give me any paper in writing, obligating him to pay me back my money. I never did ask Mr. Ford for any money, and Mr. Ford never offered to pay me any money back. After Mr. Aycock took possession of the property, he said to me, ``I think it would rent better if it had a coat of paint on it.' I said, ``Well, it might; how much will it cost?' He said he would see and tell me, and he told me it would be $90, I believe, to put a coat of paint on it; and I went and got $100 and turned it over to him to do this paint job. That money was given to Mr. Aycock after I bought the property under this deed. I knew all the time that there was a second mortgage on the property in the name of Mr. Williams. Mr. Williams came to see me when that mortgage fell due; or rather he called me over the 'phone about the note. He said, ``You don't have to pay but one note now.' I said, ``Well, if I can arrange to get the money up, what would you take for the whole business?' And that was $400. I told Mr. Aycock about that; it was all right with him, and I went out of my office in the Austell Building and counted him out $400 and told him to go and take Mr. Williams's note up. I never heard any more from him, and I just presumed that he had. I told him what I wanted done with the money, and he left there to do that, to go away and pay it, and he said he would, and he never did come back. I discovered that Mr. Aycock had taken a deed to the property in his name about a month before I brought this suit. I had heard about it before that time, but I had you to check it up, and found out for a fact that he had transferred this equity in his name and never did come back after Mr. Williams came over there; never did come back to see about protecting my interest at all. Up to that time he had accounted to me for the rent less what he paid out for repairs, insurance, and taxes. Neither one of us did have much to say about the property. It was at a low ebb and we did not try to sell it. I never pushed it, but I told him if he found a customer to let me know, and if I found one I would let him know, and also would let Mr. Ford know. He was a real-estate man and I was after getting my money out of it before the loan fell. I never did authorize Mr. Aycock to renew that first mortgage for me in his own name. After he took the property over, I think he told me he paid that old mortgage off and cut it down, and was getting along very well with it. One time he said, ``If property goes up, Mr. Cooper, you may get your money out of it.' He said, ``Your have $1033 in it;' and that is about all that was said except the time that I finally called him up. Then I laid the whole matter before you, and you checked the whole business up. I never did give him the property. If I had, I would not be in court today. I think that the house was renting for $25 a month when I bought it from Mr. Ford. Mr. Aycock told me it was renting for $25 and later to my best remembrance he said it rented for $32.50."

On cross-examination, the plaintiff testified: "The deed from Mr. Ford to Mr. Aycock, dated June 21 [1929], was recorded on the same date it was executed, or approximately that date. That deed was made by my request and he put it in Mr. Aycock's name. I knew from the time that deed was dated right on down to the present moment that title to that property was in Mr. W. M. Aycock's name, at my request. I knew that title to the property had never been placed in me. When title to that property was made as recited in that deed, there was a first loan in favor of Spratlin, Harrington Thomas, amounting to $2625, and I understood all of that, and it was recited in the paper. Also recited in the paper was a series of $30 notes, twenty-two in number, in favor of J. C. Williams, against the property, for a total of $660. I knew that exact condition of the property at the time. Mr. Aycock was with me when I delivered the $400 to Mr. C. M. Ford. I did not deliver it to Mr. W. M. Aycock. I knew that Mr. Aycock was putting some improvements on the property. As to whether he paid the interest on the $2625 loan — he never told me that he did. I did not pay it. Mr. Aycock never notified me anything about any interest coupons, and I never paid any coupons off. Mr. Aycock delivered some rent to me; I don't remember how much. I suppose he deducted the taxes, insurance, and repairs before he paid me. He paid me this rent up to the time the Spratlin, Harrington Thomas loan fell due, which I think was in the year 1932; I don't know the exact date and the month. I knew, when the $2625 loan fell due, I knew that title to the property was in W. M. Aycock. I knew that the title had never been put in my name or transferred to me by anyone. I never paid the Spratlin, Harrington Thomas loan off, and never was called on to do so. I never paid the taxes on the property; I guess that was paid out of the rents. I never made any arrangements with reference to those loans when they fell due. I did not have a chance. He never did come back to see me after he and Mr. Williams left; and I figures he just made a mistake, by saying he paid me some after that. He has never said anything to me about this property since that loan fell due, and he has not accounted to me for the rent after that date. He never brought me any money after that date. As to whether I have ever been to Mr. W. M. Aycock and made demand upon him for any rents or anything since 1932, except on the one occasion just before I brought this suit, I did not have to go to him; he came to me. He was not paying me any rent after April, 1932. I knew the title was in his name, at my request. As to whether I ever made a demand on him after 1932 — my next-door neighbor came to see me and we had a talk; I don't know how long it was after he taken it over, and he was asking about some business that I maybe was thinking about going into. I asked him what was wrong, if I had done anything wrong I wanted to know it and I would make it right it if took the shirt off my back; and he said, ``Well, everybody is just going along and doing the best they can for themselves.' I went down to Mr. Aycock's house when some of his folks got sick and died; and after that he said he wanted $25 and I handed it to him out of my pocket, and he ain't paid but $10 back on that. No, Mr. Aycock did not come to me in 1930 and tell me he wanted to give that property back to me. He did not come to me at that time with a deed to the property. I have never seen any such paper. I have talked with Mr. C. M. Ford a good many times, but not about this except just once in a while. I said to him, ``Well, it looks like property is going up, and maybe you and Mack and me can sell that property and get my money back.' I tried to sell this place up to the time the loan fell due, but real estate was kind of off and it was not salable. I did not need the money right at that time and I let it go along. I never tried very hard to sell the place, but I was trying to get shut of it before this thing fell due; and Ford said, ``You got plenty of time to do that.' As to whether I told Mr. Aycock in 1932 that I had washed my hands of this place, the title was in him and he could have it — I told him I was not going to put any more money in the place; if anybody wanted to take it over, I would loan them $150 to help them get it straightened out. I expect the Spratlin, Harrington Thomas loan was more than $2625, with interest coupons. I did not use the expression, ``I am washing my hands of it.' The transaction between me and Mr. Aycock and Mr. Ford when the property was put in Mr. Aycock's name was under an agreement between us. As between me and Mr. Aycock, there was no writing made; I just told Mr. Ford to put the equity in Mr. Aycock's name. That was a verbal statement. I never went on the property and took possession of it. I was waiting to see whether it went to sale, or if anybody taken it over, or what. As to whether I was entirely excluded from the property after 1932 — I did not receive any rent after that. As to whether I have been in possession of it — not according to what you are thinking about. No, I have not undertaken to renew any loan on it myself. I told him I was not going to put any more in the property. I know now that the loan was renewed in 1932 in the name of Mr. Aycock. I did not know it at that time. Mr. Aycock was seeing after the property for me and I was expecting him to come back and tell me what disposition he made of it. . . With reference to the deeds you show me, dated the first day of April and recorded April 2, 1932, from Mr. Aycock renewing the loan — I don't deny that he renewed the loan. He told me that he had renewed it, and I accepted his word that he had paid it off and got another loan. As to whether there was any secret about him paying it off and getting another loan. I don't suppose there was. I didn't know anything about it for a fact until the time Mr. Blackburn checked up. Just from an assumption, I believed that he had taken it over. . . I first learned that Mr. Aycock exercised ownership over this property to the exclusion of myself when I got you [Mr. Blackburn] to check it up. I don't know the exact date, but that might have been a few months before this suit was brought, just a short time. I knew there was accumulated interest on the first loan, and I also knew that the house was rented and that there is an income coming from that house. . . I never did authorize Mr. Aycock to make the paper you show me, conveying the property known as 1386 Belmont Avenue to Harrington Thomas. He never consulted me about it at all. When I first heard of that deed of May 1, 1931, it had already been executed. I have never seen until now the deed dated the first day of April, 1932, and I did not know of its having been made until just before this suit was brought. . . I have not put any money into the property since 1932. I have not put any money, or paid any taxes on the property, nor insurance, nor interest on the loans. Mr. Aycock has never informed me that he made a deed to this property to anybody since 1932."

The testimony in behalf of the defendant need not be set forth in detail; but it appears without dispute from the record that the defendant accounted for rentals on the property in question from 1929 to 1932, when a loan on the property fell due; that the plaintiff refused to renew the loan, the defendant secured another loan on the property in his own name, immediately recorded the loan deed, satisfied the indebtedness which had fallen due, and thereafter exercised ownership over the property, paying the taxes and other charges as owner, made no further accounting to the plaintiff for rentals, and was never called upon by the plaintiff for an accounting or information as to the status of the property for more than eleven years after the defendant ceased to recognize the property as belonging to the plaintiff.

The trial resulted in a verdict for the defendant. The plaintiff's motion for a new trial as amended was overruled, and he excepted. In his amendment to the motion, he complained of rulings admitting and excluding evidence, and of several excerpts from the charge of the court.

By cross-bill of exceptions, the defendant assigned error on exceptions pendente lite which he had taken to orders overruling his general and special demurrers to the petition, and disallowing an amendment to his answer. 1. The plaintiff sought a decree of title to describe realty on the theory of implied trust, and he prayed also for an accounting for rentals. He alleged, as the basis of his suit, that in 1929 he purchased the equity of a third person in the realty in question, had the title to such equity conveyed by deed to the defendant, and entered into an oral agreement with the defendant, under which the defendant was to manage the property, collect the rentals, pay insurance premiums, taxes, interest on outstanding loans, and other overhead charges, and account to the plaintiff for the balance; that the defendant has failed to account for the rentals or surrender possession of the property, and has fraudulently sought to acquire title in his own name. The defendant pleaded among other things estoppel by laches. The jury found for the defendant, the plaintiff's motion for a new trial as amended was overruled, and he excepted. There is a cross-bill of exceptions, complaining of rulings on the pleadings.

There were some conflicts in the testimony, but it is our opinion that the plaintiff's own testimony, considered with facts that appear without dispute, demanded the verdict for the defendant, and in this view the conflicts in the testimony are immaterial.

All actions against executors, administrators, guardians, or trustees, except on their bonds, shall be brought within 10 years after the right of action shall have accrued. Code, § 3-709. An action to impose or enforce an implied or constructive trust asto 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 an adverse claim, unless from the particular circumstances the claim is barred by laches. Grant v. Hart, 192 Ga. 153, 164 (14 S.E.2d 860), and cit.; Hadaway v. Hadaway, 192 Ga. 265, 269 (14 S.E.2d 874), and cit.

Whether the present case would come within either of the foregoing periods or within any periods or within any period of limitation, need not be determined, none having been pleaded; and yet both of the stated periods may be considered, in view of the plea of laches. We think that the plea was established as a matter of law by the evidence, mainly in fact by the plaintiff's own testimony. While the equitable doctrine of laches operates independently of any statute of limitations, "courts of equity usually act in obedience and in analogy to the statutes of limitations, in cases where it would not be unjust and inequitable to do so." McDonald v. Sims, 3 Ga. 383.

"In determining whether there has been laches, there are various things to be considered, notably the duration of the delay in asserting the claim, and the sufficiency of the excuse offered in extenuation of the delay, whether plaintiff acquiesced in the assertion or operation of the corresponding adverse claim, the character of the evidence by which plaintiff's right is sought to be established, whether during the delay the evidence of the matters in dispute has been lost or become obscured or the conditions have so changed as to render the enforcement of the right inequitable, whether third persons have acquired intervening rights, the nature of the right asserted and the relief asked, the nature of the duty or obligation sought to be enforced, and whether plaintiff or defendant was in possession of the property in suit during the delay. To charge a party with laches in delaying to assert a right, an opportunity to have acted sooner must have existed; if he acted at the first possible opportunity, he is not culpable. So if a party sues substantially as soon as occasion arises for an assertion of his rights, laches is not imputable to him. . . Lapse of time is an important element of laches; yet, unless a case falls within the operation of the statute of limitations, there is no fixed period within which a person must assert his claim or be barred by laches; the length of time depends on the circumstances of the particular case. Laches is not, like limitations, a mere matter of time, but [is] 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 Assn. v. Brady, 171 Ga. 576 (2), 585 (156 S.E. 222). See also Citizens Southern National Bank v. Ellis, 171 Ga. 717 (3), 733 (156 S.E. 603).

Let us now examine the plaintiff's testimony, as quoted in the preceding statement, bearing in mind the rule that "the testimony of a party who offers himself as a witness in his own behalf should be construed most strongly against him when it is self-contradictory, vague, or equivocal; and in no event should any weight be given to statements which, considered in connection with admitted facts, amount to no more than bare conclusions of the witness, unwarranted by and inconsistent with such facts."Farmer v. Davenport, 118 Ga. 289 (45 S.E. 244).

It appears that the defendant accounted for all rentals from the date of the original transaction until about April 1, 1932, when a loan of $2625 fell due. The plaintiff, upon being approached by the defendant, refused to renew the loan, stating that he was "not going to put any more money in the place," and "if anybody wanted to take it over," he "would loan them $150 to help them get it straightened out." From this time on, the defendant accounted for no further rentals. He renewed the loan in his own name, and the plaintiff had knowledge of this fact. While the plaintiff testified several times that he had no knowledge of the renewal of the loan until shortly before the institution of the suit, elsewhere in his testimony he admitted such knowledge. He testified: "I don't deny he renewed the loan. He told me he had renewed it, and I accepted his word that he had paid it off and got another loan. As to whether there was any secret about him paying it off and getting another loan — I don't suppose there was. I didn't know anything about it for a fact until the time Mr. Blackburn checked up. Just from an assumption, I believed that he had taken it over."

Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of parties. Code, § 37-116. The defendant made no misrepresentation whatever as to the status of the property, and did not conceal the fact that he had, since 1932, claimed the property as his own; and while there was at one time a trust relation, the plaintiff either knew or was put on notice as far back as 1932 that such relation was no longer recognized. Allen v. Allen, 196 Ga. 736 (2) (27 S.E.2d 679). In the meantime, the changed status of the parties and of the property continued for more than eleven years without the slightest objection or complaint on the part of the plaintiff. The defendant had not only refinanced a loan in his own name, but had assumed the other responsibilities incident to ownership. As to his own attitude in the meantime, the plaintiff testified: "I never went on the property and took possession of it. I was waiting to see whether it went to sale, or if anybody taken it over, or what. As to whether I was entirely excluded from the property after 1932 — I did not receive any rent after that. As to whether I have been in possession of it — not according to what you are thinking about. No, I have not undertaken to renew any loan [on] it myself. I told them I was not going to put any more in the property." In the circumstances, the verdict for the defendant was demanded on the ground of laches. See, in this connection, Code, §§ 3-712, 3-713, 37-119; James v. Hill,140 Ga. 739 (79 S.E. 782); Hollenshead v. Partridge, 150 Ga. 521 (104 S.E. 206); Bass v. Milledgeville, 180 Ga. 156 (178 S.E. 529); Bleckley v. Bleckley, 189 Ga. 47 (12), 59 (5 S.E.2d 206); Lankford v. Holton, 195 Ga. 317 (7), 335 (24 S.E.2d 292).

2. It is unnecessary to pass upon the special grounds of the motion for a new trial, complaining of excerpts from the charge of the court and of the admission and rejection of evidence, since none of the instructions or rulings thus complained of could have changed the result, in view of the plaintiff's own testimony, and facts that appear without dispute in the record. The court did not err in refusing a new trial.

Judgment affirmed on the main bill of exceptions; cross-billdismissed. Jenkins, P. J., Duckworth, Atkinson, and Wyatt, JJ.,concur.