Knox v. Laird , 92 Ga. 123 ( 1893 )

Lumpkin, Justice, (after stating the foregoing facts.)

1. The plaintiffs manifestly sought by amendment to convert an action at law for the recovery of land into an equitable proceeding to cancel deeds which stood in the way of their recovery, with an alternative prayer for a money judgment, against two persons who were not parties to the original suit, but whom they sought to make parties by amendment. The original action against Blake was certainly brought in time to recover the land, if the plaintiffs had been able to show a right to recovery as against him. In order to cancel the deeds constituting the chain of title from Mrs. Bailey, through Baker, to Blake, there can be no doubt that Mrs. Bailey and Knox would be necessary parties to the action. But the effort to make them parties defendant was not made until after the lapse of more than ten years from the arrival at majority of the youngest of C. W. Bailey’s children; and we therefore entertain no doubt that any cause of action which the plaintiff's may have had against them is barred by the statute of limitations. It is probable that such cause of action would have been barred after the lapse of seven years from the time when the right of action accrued, and is certainly barred in ten years. There was no allegation that the fraud complained of had been concealed, or why, if unknown to the plaintiff's or any of them, it had not been discovered; nor does anything in the pleadings even tend to negative the proposition that by the exercise of the slightest diligence they might have discovered the fraud, if any existed, at the time it was perpetrated, or soon thereafter. Lane v. Lane, 87 Ga. 268. It was insisted, however, that when the amendments were filed and allowed, they related back to the beginning of the action, and that therefore the statute of limitations did not apply. There are doubtless cases holding that an amendment to a declaration relates back to the beginning of the suit, but in all of them the defendants thereby affected were parties from the beginning. “We apprehend that no case can be found where this rule is made applicable to a defendant who is made so for the first time by the amendment in question. As to such a defendant, the filing of the amendment is undoubtedly the commencement of the action.

2. In the bill of exceptions pendente lite, referred to in the statement of facts prefaced to this opinion, error was assigned by Knox upon the ovenmling of his objections to one of the amendments, (1) that it was not germane to the original action; (2) that it set out a new and distinct cause of action; (3) that it made new parties ; and (4) that it showed upon its^ face that the superior court of Rockdale county had no jurisdiction of him, he being a citizen of the county of "Walton. It is unnecessary, however, to pass upon the merits of these objections. Granting, for argument’s sake only, that the act of October 16th, 1885, conferring equity jurisdiction upon courts of common law, and the uniform procedure act of October 24, 1887, are applicable to cases pending at the time of their passage; that the amendments in question would, even under these acts, be allowable; that the court had jurisdiction of Knox, and that the verdict against him could be sustained even though there was no finding against Mrs. Bailey (the alleged cp-conspirator of his intestate in defrauding the estate), the statute of limitations controls the case. It does not appear when Baker died, nor is there anything in the record showing that there was any suspension of the operation of the statute. It was apparent on the face of the amendments offered that the cause of action, as against Knox, was irretrievably barred, both with reference to cancelling the alleged fraudulent deeds, and as to the alternative prayer for money relief; and this being so, it constituted a good legal reason why he should not be made a party. Having urged and insisted upon the bar of the statute as an objection to his being made a party, his objection, should have been sustained. It being manifest that no recovery could be had against him, it was useless to protract the litigation by bringing him into the case. It follows as a consequence that the verdict and judgment against him should be vacated and set aside, and direction has been given accordingly.

3. The judgment against Knox having been reversed upon the first bill of exceptions sued out in this case by himself and Blake jointly, there is no occasion to consider or pass upon any of the questions presented by the second bill of exceptions brought to this court by Knox, assigning as error the overruling of a motion made by him for a new trial. Accordingly, this second writ of error is dismissed. Jones et al. v. Hurst, 91 Ga. 338, 17 S. E. Rep. 635.

4. It only remains to consider the motion for á new trial filed by Mrs. Black. In so far as any right she may have had to recover a money verdict against Knox is concerned, it has already been shown that her cause of action is hopelessly barred by the statute of limitations, even if so much of the amendments as prayed for such recovery could be allowed. It would therefore be useless to grant her a new trial as against Knox.

5. Nor is there any occasion for granting her a new trial as against Blake, for in one of the amendments to the declaration she expressly ratified, in part, the original sale of the land made by Mrs. Bailey, the executrix, and consented to the appropriation made by the latter of at least a portion of the proceeds realized from that sale. It is a principle of law, too well settled to require discussion or citation of authority, that a devisee under a will cannot ratify in part, and in part repudiate, the alleged illegal sale of land by an executrix. In ease such a sale should be set aside at all, the status of the parties existing before the sale was made would have to be restored, and this would be utterly impossible if a part of the transaction were allowed to stand. It is incumbent upon parties who have any reason to set aside a sale to repudiate it altogether. No other course is consistent or practicable. By her solemn admission in judicio, as expressed in one of the amendments referred to, Mrs. Black assented to the receipt by the executrix of $850.00 of Blake’s money in part payment of the land sold to him, and to the reinvestment by the executrix of this sum in other lands. Mrs. Black thus conclusively and absolutely abandoned whatever right she may have had, if any, to set the sale aside. Having elected to ratify the sale and proceed against Knox for the balance of the purchase money alleged to be due by him, Blake’s title is free from invalidity, and in no event could Mrs. Black now recover the land itself or any portion thereof from him. It is therefore immaterial whether the court did or did not err in its rulings regarding the rejection of evidence offered upon the trial, of which action she complains. In any view of the case, another trial, so far as Mrs. Black is concerned, would necessarily result as did the one now under consideration. The judgment excepted to in this writ of error is therefore affirmed.

Judgment in first case reversed, with direction.

Writ of error in second case dismissed.

Judgment in the third case affirmed.