Flemister v. Billups , 202 Ga. 132 ( 1947 )

The petition in this case, showing affirmatively that the plaintiffs were guilty of laches, was properly dismissed on general demurrer.

No. 15757. APRIL 16, 1947. Rubye Flemister and others, suing as the heirs at law of Albert L. Billups, who died on April 26, 1926, filed an equitable petition against Bleaker L. Billups, Cornelius King Son, and Georgia Savings Bank and Trust Company. The last two named defendants were made parties for the purpose of enjoining them from paying to Bleaker L. Billups certain money alleged to be in their possession. The suit was filed against Bleaker L. Billups as the widow and sole heir at law of Allen Billups and as the executrix of his will, and sought to recover certain real estate and to have an accounting as to certain real and personal property; it being alleged that Allen Billups, the son of Albert L. Billups, held the property in trust for the benefit of Albert L. Billups and his estate at the time of the death of Allen Billups on June 6, 1945. It was alleged that the son took over the management and operation of the business owned by Albert L. Billups, prior to the death of Albert L. Billups in 1926, under a verbal agreement to manage and operate the business and to hold the same and the proceeds thereof as the agent and employee of his father; that after the death of Albert L. Billups, Allen Billups had a verbal agreement with the plaintiffs to continue the operation of such business in the same manner as prior to the death of his father; that Allen Billups "used all the proceeds derived from said business, and from moneys in his hands belonging to Albert L. Billups, to purchase real estate, a schedule of which" was attached to the petition; and that Allen Billups had title to the property placed in his own name. The petition contained certain general allegations concerning personal property, which are too vague and indefinite to describe any property that could be made the subject of an accounting. The petition alleges that all "proceeds derived from the said business and from moneys in his hands" were invested in the real estate sought to be recovered. Copies of deeds sought to be canceled were attached to the petition as exhibits. These deeds were executed and duly recorded in the years 1925, 1926, and 1928. The prayers of the petition were for injunction, an accounting, the appointment of a receiver, the cancellation of deeds, a decree of title in the heirs of Albert L. Billups, and for general relief.

A general demurrer to the petition was filed, upon the grounds that the petition sets forth no cause of action; that whatever right of action may have existed is barred by the statute of limitations; and that the right of action is barred by laches. The trial court sustained the demurrer and dismissed the petition. To this judgment the plaintiffs excepted. 1. We think that the plaintiffs are clearly barred by laches. Our Code provides: "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." § 37-119.

This court, in Citizens Southern National Bank v. Ellis,171 Ga. 717 (3) (156 S.E. 603), said: "In determining whether there has been laches, various things are to be considered, notably the duration of the delay in asserting the claim, the sufficiency of the excuse, if any, offered in extenuation thereof, whether during the delay the evidence of the matters in dispute has been lost or become obscure, whether plaintiff or defendant was in possession of the property in suit during the delay, whether the party charged with laches had an opportunity to act sooner, and whether he acted at the first opportunity; and the delay must not be such as to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, due to loss or obscuration of evidence of the transaction in issue, or where the lapse of time has been sufficient to create or justify a presumption against the existence or validity of the plaintiff's right, or to justify a presumption that, if the plaintiff was ever possessed of a right, it had been abandoned, waived, or satisfied."

It would appear that practically all the rules announced in the preceding quotation are applicable to the facts alleged in the instant case. The plaintiffs have sat idly by since 1925 as to part of the property, since 1927 as to another parcel, and since 1928 as to another, and have done exactly nothing to assert their rights, if any they have. During all this time the property was in the possession of the deceased, Allen Billups. On acquiring the property, he promptly placed the deeds on record, and has ever since treated the property as his own. The petition fails to allege any facts even tending to show that he did anything to indicate that he was holding the property for the use or benefit of the plaintiffs. No facts are alleged which could possibly rise to the dignity of a reason or excuse for the plaintiffs' long delay in bringing suit. Not until the lips of both the father and the son, who are alleged to have made the agreement which forms the basis of the claim, have been sealed by death was any move made by the plaintiffs. In these circumstances, appearing from the petition, we think it clear that the action is barred by laches. See Cooper v. Aycock,199 Ga. 658 (34 S.E.2d 895), and Johnson v. Sears,199 Ga. 432 (34 S.E.2d 541).

2. Since we have ruled that the action is barred by laches, no ruling will be made as to the statute of limitations.

There was no error in sustaining the general demurrer and dismissing the petition.

Judgment affirmed. All the Justices concur.