Anderson v. Goodwin ( 1906 )

Lumpkin, J.

(After stating the facts.) Laying aside mere general allegations of fraud and illegality, and the adjectives used in'making them, the substantial grounds on which the plaintiff rests his case are, that an interest in real estate left by his deceased father was sold at a private sale, instead of at public sale by the administrators; that the administrators and heirs executed quitclaim deeds to the purchasers; that the former law partners of the decedent executed to the purchasers a conveyance,-as surviving partners and attorneys in fact of the decedent; that the consideration of the sale was $750, while the decedent’s interest in the real estate was worth $5,000; that the administrators refused to sue for the purpose of recovering the land; and that the plaintiff executed a quitclaim deed to the purchasers, not observing that it contained the name of any grantees, and left it with Mr. Hallman, one of the defendants, upon the condition that there should be no sale of the ^property or delivery of the quitclaim deed until the plaintiff had been notified thereof and acquainted with the price to be paid, but that it was delivered without compliance with this condition.

The plaintiff is in no position to invoke equitable aid to set aside a sale of his deceased father’s property on the ground that it was a private sale and not a public one. Ilis own allegations show clearly that he knew it was to be a private sale, and took part in accomplishing that result. The allegations as to the making of a quitclaim deed by him for the purpose of avoiding delay, and as to the inquiry whether a purchaser had been found, and the other allegations of the petition show that if the making of a private sale was fraudulent, as he charges, he was a party to the fraud. It was no fraud on him. Messrs. Goodwin & Hallman could, of course, make a conveyance to their interest in the property. But we do not perceive from the face of this record how they could convey an interest in land which belonged to the decedent, either as surviving partners or attorneys in fact. Where land is conveyed to a firm, the members are tenants in common. . Cottle v. Harrold, 72 Ga. 830 (3); Baker v. Middlebrooks, 81 Ga. 491. Real estate is not ordinarily partnership assets of a law firm, so that the survivors, as such, have power to dispose of it. Unless coupled with an interest, a power of attorney terminates upon the death of its maker. Lathrop v. Brown, 65 Ga. 312. But if the plaintiff desired to attack the power of attorney, he-should have alleged that it did exist, or that it did not exist, as the case may be, or that he did not know; and should not have rested upon a mere allusion to it. Still, whether the deed from Messrs. Goodwin & Hallman operated to convey the interest of the decedent or not would be immaterial, if all of the heirs made conveyances to the purchasers.

It is contended that the right to recover possession of the property forming párt of the estate of the decedent is in the administrators, and that if there be administration, an heir at law can not bring suit unless the administrators consent thereto; and this is undoubtedly the general rule. Civil Code, § 3357; Greenfield v. McIntyre, 112 Ga. 691; Crummey v. Bentley, 114 Ga. 749. But it would not apply if administrators themselves committed a fraud upon the estate or colluded with others to do so, and were parties, necessary or proper, to an equitable proceeding by. heirs to protect their rights. Certainly an administrator could not appropriate property of an estate to his own personal use, or collude with othersN to defraud the estate, and yet reply to an equitable action by the heirs that 'he was the only proper party to bring the suit, and that he could not be sued unless he sued himself or consented for the heirs to sue him. See Edwards v. Kilpatrick, 70 Ga. 328. In that case, however, all the heirs were parties plaintiff, and the administrator and the person with whom he was alleged to have colluded were defendants. In the present case only one of the heirs is the plaintiff, and the administrators' are not defendants. It would hardly seem that one heir alone could go further than wa,s necessary to protect his own interest, or could recover the entire estate for the benefit of other heirs, in spite of tKeir quitclaim deeds and over their protest. The allegation in regard to debts is entirely too vague to affect the question. Of course, we do not mean to say that there was any fraud in this case, as matter of fact, but we are dealing with the pleadings.

Mere general allegations of fraud are insufficient. “It is well settled that a general allegation of fraud, in a bill, amounts to nothing — it is necessary that the complainants show, by specifications, wherein the fraud consists. Issuable facts must be charged. The demurrer confesses only what is well pleaded.” Carter v. Anderson, 4 Ga. 519. In the present case it was charged that all the defendants were aware of “the illegal and fraudulent course which has been pursued;” but under the sifting effect of a special demurrer, the proposed amendment alleged, as to Messrs. Kontz and Austin, only that they were aware that Messrs. Goodwin & Hallman were the attorneys of 'the representatives of the estate; that the latter agreed to procure and did procure the assent of the representatives to the sale; that the former intended to continue to claim the land; and that they knew what they paid for it.

On one subject the petition sets out a meritorious claim. It alleges, that the plaintiff agreed with Mr. Hallman to execute a quitclaim deed upon condition that it should be held by the latter and that there should be no sale of the property or delivery of the deed until the plaintiff had been notified thereof and acquainted with the price to be paid; that the deed was accordingly left with Mr. Hallman under this condition, but was delivered to Messrs. Kontz and Austin without compliance therewith; that the plaintiff was kept in ignorance of this fact, and upon demand its return was promised by Mr. Hallman, but it was not in fact returned. The petition does not make Mr. Hallman the agent of the purchasers in this transaction, but rather the agent of the plaintiff. If he was so, he was a special agent, and-it is alleged that he was without authority to deliver the deed except upon the condition named. If this be true, a delivery so made would be ineffectual. The plaintiff in his pleadings speaks of the quitclaim deed as an escrow, but probably this is not technically correct. “An escrow, ex vi termini, is a deed delivered to some third person, to be by him delivered to the. grantee upon performance of some precedent eondition by the grantee or another, or the happening of some event.” Duncan v. Pope, 47 Ga. 451; Civil Code, §3603. If a deed remains in the control of the maker, it is not strictly an escrow. Devlin on Deeds, §§ 282, 283, 324. But it is immaterial whether the allegations make a case of an escrow or of a special agent authorized to deliver only on a certain condition. In either event, he would not be authorized to deliver the deed, .except upon the happening of the condition. See, on this subject, Devlin on Deeds, § 322; Black v. Shreve, 13 N. J. Eq. 454; 13 Cyc. 562; 1 Central L. J. 560; Riley v. Johnson, 10 Ga. 414; Wellborn v. Weaver, 17 Ga. 267; O’Neal v. Brown, 67 Ga. 707 (2); Crawford v. Foster, 6 Ga. 202; Lewis v. Board of Commissioners, 70 Ga. 486; Dixon v. Bristol Savings Bank, 102 Ga. 461, 464; Moore v. Farmers’ Ins. Asso., 107 Ga. 206. In Moody v. Threlkeld, 13 Ga. 55, a person signed a paper in blank and authorized his agent to write a note above the signature. He was treated as a general agent for that purpose. In Bonner v. Nelson, 57 Ga. 433, a surety signed a negotiable note and left it with his principal, believing and expecting that another surety would sign it also. But the note was delivered by the principal to the payee without an additional signature. It was held that the defense, to be available, must include the two elements of incompleteness and notice/ These cases differ from the one at bar.

' The plaintiff is the proper party to institute a proceeding to cancel his own deed for alleged improper delivery. The administrators could not do that for him. To the extent of seeldng to cancel this quitclaim deed, the petition alleges a case which can stand the test of the demurrers, though the allegations, even as to this point, are rather vague and uncertain. In other respects they are insufficient. As already stated, what the evidence may show is not now for consideration. The petition is considered on demurrer.

Judgment reversed in part, and affirmed in part.

All the Justices concur, except Fish, C. J., absent.