14309, Hughes v. Cobb
| Decision Date | 18 November 1942 |
| Docket Number | 14308,14309 |
| Citation | 23 S.E.2d 701,195 Ga. 213 |
| Parties | HUGHES v. COBB. COBB v. HUGHES. |
| Court | Georgia Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. A defect in a petition resulting from nonjoinder of proper parties can not be taken advantage of by a general demurrer. As to such matters a special demurrer is necessary. Greenwood v. Starr, 174 Ga. 503(2), 163 S.E. 500; Grant v. Hart, 192 Ga. 153(4), 14 S.E.2d 860, and cit. Where there is no administration of the estate of a decedent, a plaintiff may proceed in equity against the heir at law, and persons holding under the decedent. Mims v Lifsey, 192 Ga. 366(2), 15 S.E.2d 440. It appearing that there had been no administration of the decedent's estate, and that the defendant as his widow was the person entitled to ask for letters of administration under the Code § 113-1202, the petition was not subject to demurrer on the ground that the representative of the estate was not made a party defendant. A different ruling is not required by Camp v. King, 193 Ga. 3, 17 S.E.2d 65, and similar cases, where it did not appear the estate was unrepresented.
2. A party is not obligated to return that which he will be entitled to retain, as a condition precedent to a recovery in equity. Georgia Railroad Bank & Trust Co. v. Liberty National Bank & Trust Co., 180 Ga. 4(5), 177 S.E. 803. The petition in this case, which alleged that the money physically handed to plaintiff when she was coerced into signing the deed was her own money, and that she was required to return the same three days later, was not subject to demurrer on the ground, as contended, that she had not restored or offered to restore the consideration that she had received when the deed was executed.
3. There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case has to be determined according to its own particular circumstances. Miller v. Everett, 192 Ga. 26, 34, 14 S.E.2d 449, and cit. In the instant case all the acts complained of were alleged to have occurred between February 27, 1939, and the death of decedent on September 2, 1941. The petition filed on October 13, 1941, was not subject to demurrer on the ground, as contended, that the complainant had not been diligent and was guilty of laches.
4. There is no merit in the contention that the action should have been dismissed because there was an attempt to attack collaterally a judgment of a court of competent jurisdiction, which judgment was legal upon its face, for the reason that this proceeding was instituted to set aside and cancel the judgment in the same court which rendered the judgment. 34 C.J. 520, § 827. See Dixon v. Baxter, 106 Ga. 180, 32 S.E. 24, and Schulze v. Schulze, 149 Ga. 532, 534, 101 S.E. 183, where it was said: 'The only method by which it can now be set aside is by instituting a proper proceeding for that purpose in the court wherein such judgment was rendered.' The court did not err in overruling the demurrer to the petition, as contended in the cross-bill of exceptions.
5. The evidence as a whole would have authorized the jury to find that a married woman owning a home on Pelham Road and a tourist camp known as Rose Garden, first, was coerced by her husband on December 1, 1938, into selling the home to a third party, the husband taking the proceeds; second, the wife was coerced (notwithstanding the provisions of the Code, § 53-504, were apparently complied with), on March 10, 1939, into conveying the tourist camp to her husband, he giving her the proceeds from the first sale which she used with other funds in purchasing a Florida hotel, the husband jointly signing second mortgage notes with the wife, and causing her to convey the Florida hotel property back to him, subject to an interest by the wife, as long as she remained sane; third, on July 24, 1939, the husband and his attorney at law induced the wife to enter into an alimony agreement stipulating that the wife had received $570, and providing that the husband would pay the notes he had jointly signed in connection with the second mortgage; the husband also executing a deed to the wife, conveying the tourist camp which had not cost him anything, as security and guarantee that he would comply with the alimony agreement, such security deed not being recorded but held by the husband's attorney; fourth, that on August 24, 1939, the husband executed a deed conveying the Florida hotel to the wife, she expressly agreeing to pay the jointly signed second mortgage notes, thus leaving the husband with title to the tourist camp with no cost to him; fifth, that a divorce was obtained on August 25, 1939; sixth, that the husband remarried on the next day, executed to the second wife a deed of gift dated March 12, 1940, and died on September 2, 1941; seventh, that the second wife, never having been called upon to pay the second-mortgage notes which were not due, conferred with the attorney of her deceased husband, who advised that she should pay them, and on September 13, 1941, procured an agreement with the owners of the notes to allow ten per cent. discount if they were paid by October 1, 1941. Held, that the jury would have been authorized to find that the first wife was the victim in a scheme whereby her then husband by duress and fraud obtained title to her property. A different result is not required because the evidence showed that the first wife filed a petition on September 24, 1941 (nineteen days before the instant suit), seeking to have the security deed held by her declared a prior lien to the deed of gift held by the defendant; it appearing that the suit first mentioned was filed by attorneys in Atlanta who knew nothing about the early history of the case, such attorneys having been employed by correspondence with the plaintiff, who was ill in Florida, 'in no mental condition to protect her interest in a business transaction,' and for the purpose of that one transaction only. Nor is a different ruling required because the defendant, on September 26, 1941, paid the Florida hotel notes before they were due, no demand having been made upon her to make such payment either in the first suit or otherwise. The evidence showed that the first suit was based on a wholly different wrong from the cause of action in the instant case. In all the circumstances the evidence did not demand a finding for the defendant on the theory of res judicata, estoppel, or election of remedies, but would have authorized a finding in favor of the plaintiff. The judge erred in directing the verdict.
On October 13, 1941, Mrs. Jean Hughes filed in Clayton superior court, against Mrs. H. L. Cobb, a petition which, as several times amended, alleged substantially the following Previously to March 10, 1939, the plaintiff was the owner of described real estate valued at $30,000, known as the Ross Garden Court. Her then husband, H. L. Cobb, was thirty-five years of age, of powerful build, being more than six feet in height and weighing more than two hundred pounds. He was a man of violent disposition, and habitually carried a pistol. Cobb used duress when he wanted plaintiff to sell another piece of property known as 1652 Pelham Road in Atlanta. Through threats and coercion on the part of Cobb, plaintiff was forced to file in the superior court a petition asking that she be authorized to sell to him the property known as Ross Garden. After the order had been entered, the plaintiff was forced and coerced into executing a deed conveying the property to him. The consideration of $10,500 was plaintiff's own money that her husband held as trustee for her after sale of the Pelham Road property, and the above amount was again taken from plaintiff three days later, at Cobb's instance. The money was used by Cobb's agent in buying designated Florida hotel property in plaintiff's name, she being required contemporaneously to sign a deed conveying the property to Cobb. The only interest retained by plaintiff was a life-estate or as long as she remained sane, she to collect rents and apply them in payment of an existing mortgage, which would take about thirty-three years to pay; Cobb retaining title in the equity until August, 1939. Cobb also induced plaintiff to sign an alimony settlement, which had been drawn entirely for his benefit. In connection with the alimony settlement the plaintiff was to receive a security deed to the Rose Garden Court property. This deed, which Cobb refused to deliver to her, was not recorded, but was kept in escrow by Cobb's attorney. While the security deed was supposed to protect the plaintiff in the payment of so-called alimony, it in fact merely secured the payment of Cobb's mortgage on the Florida property. The plaintiff was also required to sign a receipt for $570, but the money was not paid to her. She alleged in detail that all of her acts and doings were under duress and fear of death, she being an ill woman, and Cobb a powerful man. In August, 1939, Cobb through duress forced her, against her wishes, to apply for and get a divorce in Florida, all details of which were handled by his attorneys; after which he married the defendant, who had full knowledge of the above scheme to take away plaintiff's property from her. After thie marriage Cobb continued his threats, and the plaintiff was afraid to assert any rights against him. On March 12, 1940, Cobb executed a deed of gift conveying the Rose Garden property to the defendant, and died on September 2, 1941. There is not now and never has been a representative of Cobb's estate. The plaintiff is not the heir at law or next of kin, nor is she the creditor of Cobb, and for that reason she cannot apply for letters of administration of...
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