Edwards v. Kilpatrick

• Decision Date: 28 February 1883
• Citation: 70 Ga. 328
• Parties: Edwards et al. vs. Kilpatrick, administrator, et al.
• Court: Georgia Supreme Court

70 Ga. 328

Edwards et al. vs. Kilpatrick, administrator, et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Equity. Jurisdiction. Administrators and Executors. Title. Fraud. Before Judge Lawson. Jones Superior Court. October Term, 1882.

Reported in the decision.

R. V. Hardeman; Lanier & Anderson, for plaintiffs in error.

A. D. Hammond; Billups & Hardeman; L. E.Bleckley, for defendants.

Crawford, Justice.

This bill is filed by Annie M. Edwards, for herself and as the next friend of her minor child, Annie M. Johnson, against Wm. G. Kilpatrick as administrator of Wm. Johnson, deceased, of the county of Jones, and Wm. H. Head, of the county of Monroe. The complainant, Annie M. Edwards, was the wife, and Annie M. Johnson the child, of the deceased intestate. This bill is filed to recover certain lands which formerly belonged to the said Wm. Johnson, and which were sold under an execution against him in 1873, and bought by the defendant, Wm. H. Head.

The allegations in the bill which are necessary to consider in ruling the case are, substantially, that about the time of the sale of this land, there was pending in the superior court of Jones county a rule to foreclose a mortgage upon it, which the said Johnson, the mortgagor, was resisting. In view of this proceeding to foreclose the aforesaid mortgage, and of the fact that the said Johnson was embarrassed, and unable to raise the necessary funds to settle the fi. fa. which had been levied upon the land, and reposing special trust and confidence in the said Wm. H. Head, who was his son-in-law, it was agreed between them that the land should be sold at sheriff\'s sale, and that the defendant, Head, should buy it in, and take titles thereto to himself, in order to defeat a recovery upon the mortgage then being foreclosed against the said land. And it was further agreed between them, that pending the said litigation and afterwards, the said Head was to have and receive the rents, issues and profits arising from the said land, until he should be reimbursed all amounts paid out by reason of the said sale, as well as whatsoever he might thereafter have to pay out, on account of any recovery had by the foreclosure of the mortgage or otherwise. That after receiving an amount from the said lands sufficient to repay all the advances, with legal interest thereon, then the said Head was to reconvey the said lands to the said Johnson. That he has received from the said lands largely more than sufficient to pay all the advances made by him for the said Johnson. That the said Johnson died in 1875, and the said Head has refused to account for the same, and has taken charge of the said lands as against the administrator and the rights of the complainant as to dower, or any other interest she might have, or that the daughter of the said Wm. Johnson might be entitled to in the said land; not only refusing to reconvey, but asserting title in himself, although he has paid out but a fractional part of the value thereof. That he refuses to turn over the said land to the administrator, that it may be administered as the property of the said Johnson, which is a fraud, both upon the estate of the said Johnson and the complainants. The prayer of the said complainants is, that the said defendant, Head, be compelled to account for all the rents, issues and profits arising out of the said land, and to answer as to the amount paid out in and about the several matters to which reference has been made; that the sheriff\'s deed be delivered up for cancellation, and the land revert and be vested in the estate of Johnson for administration; that Kilpatrick, the administrator, beauthorized and required to administer the same, allowing the complainant her dower or child\'s part, and the balance to be administered for the benefit of the heirs and creditors.

There were amendments offered and allowed to the said bill, but nothing material or necessary to be stated, in the view we take of the case, except that discovery was waived and a general charge of collusion between the administrator and the said Wm. H. Head, and the refusal of the administrator, Kilpatrick, to sue.

To this bill the defendant, Head, filed a demurrer upon the grounds:

(1.) That there was no equity in the bill.

(2.) Because there was no substantial relief prayed against Wm. G. Kilpatrick, the administrator.

(3.)...