Farnell v. Brady
| Decision Date | 21 October 1924 |
| Docket Number | 4425. |
| Citation | 125 S.E. 57,159 Ga. 209 |
| Parties | FARNELL ET AL. v. BRADY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court did not err in overruling the general and special demurrers to the petition.
"He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit." Civil Code 1910, § 4521. Accordingly, as a general rule, a petition to a court of equity to cancel a contract representing the sale of property, where there is no return or offer to return the consideration, is demurrable. An exception to the general rule stated above is that "a party is not obliged to return that which he is entitled to retain," as alleged in the petition in this case, to wit, that the petitioner was fraudulently induced to sell and transfer her interest in an estate to others interested therein, for a sum much less than the amount due her as one of the heirs. Treating the allegations of the petition as true for the purpose of considering the demurrer, the plaintiff is entitled to many times the amount received by her upon proper and just accounting and distribution of the estate. Equity does not require the useless procedure upon the part of the plaintiff to return a part of her just proportion only to have it included in the larger sum due to her and which she seeks to recover. See Collier v. Collier, 137 Ga. 658 (3). 74 S.E. 275, Ann.Cas. 1913A, 1110; Taylor v. Colley, 138 Ga. 41 (4), 74 S.E. 694; Mann v. Showalter, 145 Ga. 269 (3), 274, 88 S.E. 968.
Error from Superior Court, Grady County; W. V. Custer, Judge.
Suit by Bertha Brady against Ed Farnell and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Bertha Brady filed an equitable petition against Ed Farnell individually and as administrator of the estate of Martha M Arline, and against certain other persons named as heirs of Martha M. Arline. The petition alleges. The plaintiff is entitled to a one-fourth interest in said estate; that on December 31, 1918, Farnell came to the home of petitioner and, pretending to represent the other heirs to said estate and that he was of kin to petitioner, stated to her that he was making an effort to settle the affairs of the estate that said estate was worth approximately $800 or $900, and that the share of petitioner would therefore be $200. Under this false and fraudulent statement by said Farnell she was induced to sign a receipt reading as follows:
"Received of Ed Farnell, representing the heirs of the estate of Mrs. M. M. Arline, the sum of $200 in full settlement any and all interest I may have in said estate; and I hereby agree, that in the event any formal execution of papers may be found necessary, that I will execute same."
She has since learned that said estate was worth and brought at public sale approximately $7,000. She is illiterate and unaccustomed to business affairs and commercial transactions and she relied upon the statements made to her by her purported kinsman, the representative of the other heirs, in signing said receipt. She did not know the import thereof, or what said estate was worth, except that she understood that her deceased grandmother left some money in bank and some real estate, and she believed at the time that said fund received by her was a distribution of the cash on hand, and that said $200 was her share thereof, and was so told by Farnell. "As before stated, she understood and now believed that the deceased left $3,500 in currency, $1,000 or other large sums in Liberty bonds, a house and lot in Cairo, or other house which, when and sold converted into cash, brought into the hand of said administrator $7,000...
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