Duncan v. Pope

• Decision Date: 31 July 1872
• Citation: 47 Ga. 445
• Parties: C. C. DUNCAN, administrator, et al., plaintiffs in error. v. SALLIE POPE, by her next friend, defendant in error.
• Court: Georgia Supreme Court

47 Ga. 445

C. C. DUNCAN, administrator, et al., plaintiffs in error. v. SALLIE POPE, by her next friend, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Illegitimate child. Partition. Consideration. Escrow. Delivery. Exceptions. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.

Sallie Pope, a minor, by her next friend, William Bishop, filed her bill containing substantially the following allegations: That she is the illegitimate child of James S. Pope, deceased, and so acknowledged by him to be; that her said father during life always treated complainant indulgently and kindly, and frequently openly averred his intention to give to complainant a large portion of his estate at his death, to supply her wants and to preserve her from suffering and poverty; that her said father was prevented from carrying into effect this often expressed intention by his sudden and unexpected death, which occurred in 1866; that said death was so sudden as to prevent the execution of a will; that her father left property to the. value of $20,000 00, and the defendant, C. C. Duncan, was duly granted letters of administration upon said estate; that though complainant, under the law of Georgia, cannot inherit said propert yet she is entitled to be supported, maintained and educated during the period of her minority out of the property of the estate of her said father; that she had applied to said Duncan to have said support set aside; that complainant and her mother had been placed by the said James S. Pope, during life, in possession of a certain house and lot in the city of Macon, and that complainant, by her tenant, is still in possession of said property; that in response to the application of complainant, Duncan made some indefinite promise to convey in fee simple to complainant said property, but would never execute any conveyance; that complainant placed the matter in the hands of Simmons & Bacon, attorneys at law, to secure her rights in the Courts; that upon being approached by complaintant's said attorneys, said Duncan agreed to convey said property in trust for her, but postponed the execution of a deed for a few months, until the heirs of said Pope, deceased, should become of age; that subsequentlyto said arrangement complainant, by her attorneys, *discovered that Stephen and A. P. Collins owned a two-sevenths interest in said property; that upon the representation of Duncan that said interest could be purchased for a trifling sum, complainant did not then repudiate the agreement; that complainant was not informed at the time of said negotiations thatthere was a bill pending in Houston Superior Court, filed by Stephen Collins and A. P Collins against the said C. C. Duncan, administrator, for the partition of said property, and for the recovery of the rent; that said Stephen Collins and said Duncan had had repeated conversations with complainant\'s solicitors in reference to the conveyance of said property to her, and had carefully concealed from her the pendency of the aforesaid litigation; that said Duncan and Stephen and A. P. Collins combining and confederating together for the purpose of defrauding complainant in the premises, at the last term of Houston Superior Court, entered into a consent decree that said house and lot be sold for partition, and that two-sevenths of the proceeds of said sale be paid to the said Stephen and A. P. Collins, and the sum of $125 00 for rent of said two-sevenths also to be paid out of the proceeds of sale; that under said decree, James Martin, sheriff of Bibb county, has levied upon and advertised said property for sale on Tuesday, the 5th day of April; that after the aforesaid decree had been taken, Duncan sent to complainant a quit claim deed to said property, signed by the heirs of her deceased father, at the same time communicating the facts as to said decree, which was the first information that complainant ever received that said bill was or had been pending; that the date to said deed is showed, and appears to have been changed from January 4th, 1870, to February 28th, 1870, so as to give effect to the same subsequent to the time of said consent decree; prayer, that defendants may be enjoined from further proceeding under said decree, or from transferring the same, or from conveying said property to any third person until the further order of the Court; that Duncan may be required to account with Stephen and A. P. Collins for whatever amount may be due them, and to convey said property to complainant *free from any incumbrance or claim whatever, or that such sum of money be paid to the use of complainant as may be necessary for her support, maintenance and education during her minority.

The joint answer of the defendants, Stephen and A. P. Collins, admitted most of the allegations of the bill, but denied that they had combined or confederated with Duncan to defraud complainant, and also alleged that in the entire transaction as to the house and lot they alone negotiated with Duncan, and had no connection whatever with complainant, regarding her as having no interest whatever in the property; prayer, that their answer may be considered as a cross-bill, and that two-sevenths of said house and lot be decreed to be the property of defendants, and that the same be sold for partition and defendants' share be paid to them, with rent from August 1st, 1866.

The defendant, Duncan, answered the bill, substantially, as follows: that soon after the death of said Pope, a colored woman named Josephine, formerly the property of James Ralston, called on defendant, and represented that she had an illegitimate child by said Pope; that said Pope had promised to provide for said child, and she thought some provision...