Anderson v. Goodwin

• Decision Date: 24 May 1906
• Citation: 54 S.E. 679,125 Ga. 663
• Parties: ANDERSON. v. GOODWIN et al.
• Court: Georgia Supreme Court

54 S.E. 679

125 Ga. 663

ANDERSON.

v.GOODWIN et al.

Supreme Court of Georgia.

May 24, 1906.

1. Administrators—Sales—Setting Aside.

An heir at law who knows that a private sale of certain property of a decedent is sought to be made, and who takes part in the accomplishment of such a result, and makes a quitclaim deed in order to effectuate that purpose, is in no position to invoke equitable relief to set aside a sale so made on the ground that it is a private sale, and not a public administrator's sale.

2. Partnership—Real Property—Death of Partner.

Where partners own real estate as tenants in common, and one of them dies, the others as surviving partners cannot convey a good title to his interest.

[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 520, 521.]

3. Principal and Agent—Power of Attorney—Termination—Death of Maker.

A power of attorney, unless coupled with an interest, terminates upon the death of the maker.

[Ed. Note.—For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 67-71.]

4. Same—Authority of Attorney in Fact-Pleading.

If it was sought to attack the action of a person signing a deed as an attorney in fact, it should have been alleged either that there was such power of attorney, or that there was not, and if there was such a power it should have been described with reasonable certainty, and the grounds of its invalidity should have been stated. This not being done, and no sufficient legal reason being stated for the failure, mere general references to the fact that the person did act under a power do not constitute any sufficient attack upon it.

5. Administrators—Actions—Fraud.

The general rule is that if there is administration on the estate of a decedent, the right to recover possession of property forming part of the estate is in the administrator, and an heir at law cannot bring suit unless the administrator consents thereto. But if an administrator commits a fraud upon the estate, or colludes with others to do so, this rule would not prevent the heirs from bringing an equitable action against such administrator and the person charged to be in collusion with him, for the purpose of protecting the estate.

6. Deeds—Cancellation—Right of Action —Relief Proper.

If all the heirs made quitclaim deeds covering their respective interests in real estate of the decedent to a purchaser from the administrators, and one of them claimed a right to set aside or cancel the deed made by him, on the ground that it was unlawfully delivered, this would not authorize him to proceed to cancel the entire transaction and compel the whole property to be delivered to the administrator for administration. He could proceed only for the protection of his own interest and to the extent necessary for that purpose.

7. Cancellation of Instruments—Pleading Grounds.

The allegation of the existence of some debts is too vague and indefinite to affect thequestion, and the case made is that of a single heir who desires to set aside a sale and have the whole property returned to the administrators substantially for the benefit of all the heirs, in spite of the fact that they appear to have made quitclaim deeds to their interests, and not to desire a restoration.

8. Cancellation of Instruments—Fraud— Pleading—Form of Allegations— Definiteness.

Mere general allegations of fraud in an equitable proceeding are insufficient. It is necessary that the plaintiff show by specification wherein the fraud consists.

[Ed. Note.—For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, § 78.]

9. Escrow—Delivery by Depository—Performance of Condition.

If a deed to real estate is signed and delivered to a depository as an escrow, or to a special agent, with authority to deliver it to the grantee only upon a certain condition, a delivery to such grantee without the happening of such condition would not be lawful.

[Ed. Note.—For eases in point, see vol. 19, Cent. Dig. Escrows, § 17.]

10. Same—Depositories.

A deed cannot be delivered in escrow to the grantee therein or his attorney; but the allegations of the petition do not make a case of such delivery.

[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Escrows, § 6.]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. L. Pendleton, Judge.

Action by A. H. Anderson against J. B. Goodwin and others. From a judgment in favor of defendants, plaintiff brings error. Reversed in part, and affirmed in part.

Anderson filed his equitable petition against John B. Goodwin, Henderson Hall-man, E. C. Kontz, and J. W. Austin, alleging as follows: Plaintiff is a son and heir at law of James A. Anderson, deceased, who died intestate. Jennie J. Anderson and Paul W. Anderson were appointed administrators, and qualified as such. At the time of his death he was a member of the firm of Goodwin, Anderson & Hallman; two of the defendants being the other members. He and the defendants were owners in common of certain real estate described; he owning an undivided five twenty-fourths interest, the defendant Goodwin, five twenty-fourths, the defendant Hallman one twelfth, and defendants Kontz and Austin each a fourth. The value of the decedent's interest was $5,000. On or about August 3, 1904, Messrs. Goodwin & Hallman, as surviving partners and attorneys in fact, executed a conveyance to the defendants Kontz and Austin covering the five twenty-fourths interest which he had owned in his lifetime, for a consideration which appears in the conveyance as $750. This sale was made without any advertisement Plaintiff had no knowledge of the transaction until recently, and he obtained this from the public record of deeds. Some time prior to August 3, 1904, the defendant Hallman stated to plaintiff that he wanted a quitclaim deed from the plaintiff and other heirs, to be used in the event a purchaser for said property could or should be found. At that time three of the heirs were absent from the city of Atlanta, and three remained there. Plaintiff asked some question concerning the execution of the deed, and the defendant Hallman replied it was just a formality; that he wanted to be ready, in the event a purchaser could be found, to make a sale of the property, so that he would not be delayed in having to secure quitclaim deeds of the heirs of the deceased. Plaintiff agreed with Hallman to execute such a deed, upon condition that it would be held by the latter for the purpose stated by him, and upon the further condition that there should be no sale of the property or delivery of said quitclaim deed until plaintiff had been notified thereof and acquainted with the price to be paid therefor. "At the time of the execution of said deed by petitioner he did not take note of the names of the grantees therein, and does not know that it contained at that time the names of the grantees. Petitioner alleges that there was no consideration, other than hereinbefore stated, accruing to petitioner; the recital in said deed that $5 was paid, etc., being a mere formal recital." A short time afterward plaintiff asked Mr. Hallman if a purchaser had been secured, and, receiving a negative reply, asked for a return of the deed. Mr. Hallman promised to make such return, but did not do so. Plaintiff asked for a return of the deed on a number of occasions, but it was refused. In fact the quitclaim deed was delivered to Messrs. Kontz and Austin, "who appear to be the grantees therein." The delivery of the deed was illegal, and it was the duty of Mr. Hallman to have held it as an escrow, to notify the plaintiff of any purpose to use it, or to deliver it. It has been put on record. The conveyance made by Messrs. Goodwin & Hallman, as surviving partners and attorneys in fact, of the interest in reality belonging to the plaintiff's father, was illegal. The consideration of $750 was inadequate. Plaintiff's father left certain debts due. There are six heirs. Administration was had, and all the property should be administered according to law, and an effort to divert any of the property or assets of the estate is an effort against the creditors and heirs at law. The law firm of Goodwin & Hallman are counsel for the administratrix and administrator, and seem to be in complete control of the assets of the decedent. The facts of the attempted sale of realty were learned by plaintiff from the records of the county, after repeated efforts to obtain a statement from the attorneys had failed. "Your petitioner alleges that each and all of the defendants were and are aware of the illegal and fraudulent course which had been pursued in an effort to divert from the lawful channel of a regular administration a large and valuable portion of the es-tate of your petitioner's father, and that each and every one of the defendants was and is a party thereof. The prayers were for the cancellation of the conveyance by Messrs. Goodwin & Hallman, as surviving partners and attorneys in fact of the decedent; for a cancellation of the quitclaim deed made by the plaintiff; that the court direct that the interest of the decedent be returned to the hands of the administrators, to be regularly and legally administered according to law, and for general relief.

General and special demurrers were filed. One of the grounds of the special demurrer attacked the allegation that all of the defendants "are aware of the illegal and fraudulent course which has been pursued, " etc., and were parties thereto. The ground of demurrer was that this was loose, vague, and indefinite, and that no facts in support of it were alleged in this paragraph or elsewhere. An amendment was offered by the plaintiff which alleged in brief as follows: Messrs. Goodwin & Hallman advised the representatives of the estate to permit, assent to, and approve the illegal sale of the lands complained of. The defendants Kontz & Austin were aware of the fact that the defendants Goodwin & Hallman were the attorneys for the representatives of the estate, and such...