McWhorter v. Cheney , 121 Ga. 541 ( 1904 )

Evans, J.

(After stating the facts.) The first proposition to be determined in solving the rights of the plaintiff is whether the widow of the head of a family, who is the sole beneficiary under a homestead, is affected by the ordinary rules • of limitation as applied to the recovery of her interest in the homestead property. It would seem that if the wife of the head of a family could assert her rights under the homestead by filing a claim in her own name (Connolly v. Hardwick, 61 Ga. 501), she could prosecute any other appropriate remedy to prevent interference with her homestead interest. Eve v. Cross, 76 Ga. 693. Certainly, upon the refusal of the head of the family to sue, she could maintain an action for any deprivation of benefit to which she might be entitled under the homestead. Pritchett v. Davis, 101 Ga. 236. The general rule is that limitation runs against all persons who are not under disability to sue. The wife or widow of the head of the family being under no legal disability to institute and maintain an action for an invasion of her homestead rights, must assert her rights within the period of limitation. The plaintiff’s cause of action accrued upon the fraudulent sale of the homestead, and her right to sue began as soon as she knew of the fraud or by reasonable diligence could have known of it. She waited eighteen years after the alleged fraudulent sale before instituting her suit. She insists that even if the statute of limitations was applicable, her cause of action is not stale, because the defendant’s possession of the land originated in fraud and that no length of time could ripen such fraudulent possession. into a prescriptive title. It is undeniably true that possession originating in fraud can never ripen into prescription. And if the present suit was to recover the land, the defendant could not plead a fraudulent possession for more than seven years as a bar to a recovery against the true title. The plaintiff does not claim the -title to the land, but only a usufruct therein, and her .suit is brought to cancel the title of McWhorter as fraudulent and to recover the mesne profits since he has been in possession, and to procure a decree for the use and occupation of the homestead premises during her life. As her., husband joined with petitioner in the deed sought to be canceled, it would seem that his estate ought to be in some way represented in the litigation before his deed is- vacated. Until the deed from plaintiff’s deceased- husband to McWhorter is legally vacated, the title to the reversion is in McWhorter. ■ The deed may have been ineffectual to convey the homestead. interest, because of tbe alleged collusive conduct of McWhorter and plaintiff’s husband; but it did convey the husband’s reversionary interest, the homestead being taken out under the constitution of 1868. Huntress v. Anderson, 110 Ga. 427. Assuming, however, that petitioner, who is the sole remaining beneficiary of the homestead, is seeking to cancel the sale to the defendant as a means of recovering her beneficial. interest, if the cancellation of such sale is not a condition precedent for her recovery, then she could maintain so much of her action as sought to recover her usufruct interest witho'ut formally vacating her husband’s deed to the homestead estate. That is to say, if the defendant’s title is not a good one, is void as against her, it would not estop her recovery of her right to the possession of the. homestead property during her life. Thus construed, her action is to recover her usufruct interest in the homestead (which is the right of possession of the homestead land during her life) and damages for withholding that right since 1886, which are alleged to be the mesne profits of the land, and her action is maintainable without making the personal representative of her deceased husband a party. Pritchett v. Davis, supra.

Petitioner does not allege her ignorance of the fraud at the time of its commission nor at any subsequent time. From her petition it is clearly inferable that she was cognizant of the fraud from its inception. She signed the deed of 1886, and McWhorter went into possession that year. If there was no reinvestment, she must have known it from the beginning. Besides, she alleges that as her children would arrive at majority, the defendant would attempt to get deeds from them, and that her youngest child arrived of age more than seven years before the bringing of her suit. The only excuse offered for .this long delay of eighteen years is that “her husband refused to bring the suit, and when petitioner’s sons attempted to bring it for her, he objected thereto and prevented the same.” This allegation does not amount to a charge of duress on the part of the husband ; and even if it did, McWhorter is not alleged to be responsible therefor. Her right to sue, from all the allegations of the petition, existed from the beginning of the alleged fraud, as she does not disclaim knowledge of the fraud and the reasonable deduction from her pleadings is that she had contemporaneous knowledge of the various acts alleged to be fraudulent. In another part of this opinion it was pointed out that this was not an action of ejectment; that the title in reversion was not involved, but the suit was for the recovery by the sole beneficiary of a homestead usufruct and damages in the way of mesne profits for interference with her enjoyment of the homestead property. The demurrer does not set up prescription on the part of the defendant, but attacks the case as made by the petition as a stale demand. Now it is a familiar doctrine that not only do the various limitations apply equally to all courts, but, in addition, courts of equity may interpose an equitable bar whenever, from lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights. Civil Code, §3775. Eighteen years have elapsed since the alleged fraud was committed; the husband is dead, and the ascertainment of the truth made more difficult. Equity follows the analogy of the law; and even in suits to recover land, when fraud is charged, it has been held that “the period of limitations applicable to an action . . for -the fraud is the same as that which would apply to an action for the land, to wit: seven years from the discovery of the fraud.” Cade v. Burton, 35 Ga. 280. “If the defendant has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitations shall run only from the time of the discovery of the fraud.” Civil Code, § 3785.- The statute of limitations is a .statute of repose. When a person is defrauded and has knowledge of the fraud, the law expects him to ask redress, if at all, within the period of limitation. If h§ waits for a longer period, he is bound by his laches. The petition does not charge the defendant with any conduct the effect of which was to debar or deter her from sooner bringing suit. We therefore conclude that the cause of action set out in the plaintiff’s petition was a stale demand, and the.court should have sustained the demurrer thereto.

Judgment reversed.

All the Justices concur.