Crider v. Harris

• Decision Date: 13 January 1937
• Docket Number: 11495.
• Citation: 189 S.E. 519,183 Ga. 695
• Parties: CRIDER et al. v. HARRIS et al.
• Court: Georgia Supreme Court

189 S.E. 519

183 Ga. 695

CRIDER et al. v. HARRIS et al.

No. 11495.

Supreme Court of Georgia

January 13, 1937

Error from Superior Court, Pickens County; J. H. Hawkins, Judge.

Suit by Mandana Crider and others against Skid Harris, administrator with the will annexed of the estate of J. J. Harris deceased. To review the judgment, the plaintiffs bring error.

Affirmed.

Syllabus by the Court.

1. Where a suit for cancellation of deeds was based upon allegations designed by the plaintiffs to show fraud on the part of the defendant in procuring such deeds, and the court sustained a demurrer, one ground of which attacked the petition because the facts alleged did not amount to such fraud as would authorize the relief sought, and this ruling was never excepted to or set aside, it constituted valid ground for a plea of res judicata to a second petition based upon substantially the same allegations as to fraud.

2. The ruling on the demurrer was binding in favor of the defendant as against those who were plaintiffs in the first action notwithstanding the second petition introduced a new plaintiff who was not bound by the former judgment.

3. The fact that after dismissal of the first suit the plaintiffs for the first time made an offer to restore the status by paying to the defendant the amounts of money which they had received from him do not entitle the same plaintiffs to maintain against the same defendant the second action based upon substantially the same alleged facts in regard to fraud. This is true for the reason that under the former adjudication such facts did not constitute fraud, and in the absence of fraud the relief of rescission and cancellation was not available to the original plaintiffs either with or without such tender.

J. H. Paschall, of Calhoun, for plaintiffs in error.

Roscoe Pickett, of Jasper, for defendants in error.

BELL Justice.

J. J Harris, a resident of Pickens county, died in 1913, leaving about 245 acres of land which he had willed to his widow for the period of her natural life. His widow died in January 1934. In February, 1934, Skid Harris was appointed administrator with the will annexed of the estate of J. J. Harris, deceased. Skid Harris was the son of the deceased, and there were several other children, including Mrs. Mandana Crider, who were interested as remaindermen. In April, 1934, Mrs. Crider and others similarly situated filed a suit in equity against Skid Harris individually and as administrator, seeking, among other things, a cancellation of deeds which they had made, conveying to Skid Harris their respective interests in the landed estate left by their father, contending that they were induced to execute the deeds for grossly inadequate considerations by the fraudulent representations of the defendant. The defendant demurred to the petition, on the following grounds: '1. Said petition sets forth no cause of action. 2. Said petition shows upon its face that no tender of the money paid each of the plaintiffs in said petition by defendant, Skid Harris, for the lands in question, has been tendered back to defendant, or any offer made to restore the status quo, before filing said petition. 3. It does not appear from said petition that all of said plaintiffs were not over 21 years of age when they sold their respective interests in said lands to this defendant, or that they were laboring under any legal disability at said time, or that they did not have equal opportunity with defendant of inspecting the said lands in question, and of ascertaining its value, or that any legal fraud was practiced upon any of them by this defendant in procuring the deeds to said lands, or that they or any of them were prevented from ascertaining the value of said lands by any act of this defendant.'

On April 28, 1934, the judge of the superior court entered an order sustaining this demurrer, in the following language 'It is considered, ordered, and adjudged by the court that the within demurrer be and the same is hereby sustained.' No exception was taken to this judgment; but after about a month the same plaintiffs, together with Mrs. Victoria Evans, one of the children of J. J. Harris, who was not a party to the first suit, filed a second petition against the same defendant, based on substantially the same allegations and praying for the same relief, except that in the latter suit the plaintiffs alleged that they had tendered to the defendant the amounts paid to them, respectively, for the deeds in question. To this suit the defendant filed a plea of res...