Frazier v. Broyles

• Decision Date: 18 August 1916
• Docket Number: 595.
• Parties: FRAZIER ET AL. v. BROYLES ET AL. BROYLES ET AL. v. FRAZIER ET AL.
• Court: Georgia Supreme Court

89 S.E. 743

145 Ga. 642

FRAZIER ET AL. v. BROYLES ET AL.

BROYLES ET AL. v. FRAZIER ET AL.

No. 595.

Supreme Court of Georgia

August 18, 1916

Syllabus by the Court.

"Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." Consequently, where an action is brought to recover land and to cancel certain deeds executed by some of the defendants and the petition shows on its face that in order for the plaintiffs to recover it is necessary that the deeds be canceled and the plaintiffs accorded equitable relief, and that all the defendants reside in a county other than that in which the land lies and the suit is brought, there is no error in sustaining a demurrer for want of jurisdiction, and in dismissing the petition.

Error from Superior Court, De Kalb County; C. W. Smith, Judge.

Suit by Lena Frazier and others against Arnold Broyles and others. There was a judgment dismissing the suit, and plaintiffs bring error, while defendants prepared a cross-bill of exceptions. Affirmed, and cross-exceptions dismissed.

Suit to recover land and cancel deeds executed by some of defendants instituted in county wherein land lay, which was other than that of defendants' residence, will be dismissed, the cancellation of the deeds being essential, for equity cases must be tried in the county where defendants reside.

Mrs Lena Frazier, who sues in her own right, and Claude J. Adams Clement A. Adams, Harris M. Adams, and William Mullen, all minors, brought suit by their next friend, Mrs. Lena Frazier and alleged, so far as material to the consideration of this case, substantially as follows: The defendants in the case are Arnold Broyles, F. E. Callaway, Lumpkin Investment Company (a corporation of Georgia, with its principal office in Fulton county), and Mrs. Ellen A. Neill, all of Fulton county, Ga. Plaintiffs, together with William J. Adams, are all the children of J. W. Adams, deceased, late of De Kalb county, and at the date of his death in 1903 all of the plaintiffs and also William J. Adams were minors. Mrs. Ellen A. Adams was the widow of J. W. Adams and the mother of all the plaintiffs, except William Mullen, who is a grandchild of J. W. Adams; his mother, Lottie Mullen (née Adams), having died, leaving William as her only heir at law. After the death of J. W. Adams, his widow, Ellen A. Adams, was married to John Neill, of Fulton county, Ga., and is one of the defendants herein. At and prior to his death J. W. Adams owned a tract or parcel of land in land lot No. 121 in the eighteenth district of De Kalb county, Ga., containing 55 acres, a description of which is set out in the petition. Ellen A. Adams, after the death of her husband, petitioned the court of ordinary of De Kalb county to have a year's support set apart to her and her seven minor children, on or about September 4, 1905; and the ordinary issued his warrant to five appraisers, directing them to assign and set aside a year's support to petitioner and her minor children; and on September 5, 1905, the appraisers made a report to the ordinary, setting aside the above-described land, together with certain personal property, as a year's support for the widow and her minor children; and this return was made the judgment of the court of ordinary and admitted to record. It was alleged that the setting apart of the year's support vested the title to the land in the widow and her seven minor children. About June 2, 1911, Mrs. Ellen A. Neill, then Mrs. Adams, conveyed the real estate so set apart to Arnold Broyles and F. E. Callaway, by warranty deed, for a consideration of $4,400; but the land at that time was worth more than $10,000. Shortly after the above conveyance Broyles and Callaway, on September, 1912, conveyed 20 acres of the land to one of the defendants' Lumpkin Investment Company, for the consideration of $3,250. At the time of the purchase by the Lumpkin Investment Company it had notice that the property had been set apart out of the estate of petitioners' deceased father as a year's support, and it was chargeable with notice of all the facts in connection with the sale of the property by Ellen A. Adams to Arnold Broyles and F. E. Callaway that a diligent inquiry would have disclosed. At the time Mrs. Adams sold it, it was unnecessary for her to sell the property for the purpose of securing a year's support; and she had no authority to sell the interest of petitioners in the property for any other purpose, as the rents and profits from the same were sufficient to have supported the family, etc. If it had been necessary to sell the land for a year's support for herself and minor children, it would have been necessary to sell but one, two, or three acres of the land. Mrs. Ellen A. Adams did not sell the property for the purpose of securing money for a year's support for herself and minor children, or for reinvestment, but for other purposes; and the money received from Broyles and Callaway was used by her in buying a house on the north side of Glennwood avenue in Atlanta for $2,700, and the title to the property was taken in her own name. This conveyance was illegal and fraudulent, and did not convey the title to petitioners' property; and both conveyances above set forth are a cloud upon petitioners' title. Mrs. Adams has abandoned possession of the property to Broyles and Callaway, who in turn delivered possession to the Lumpkin Investment Company; and petitioners are entitled to the rents and profits of the land from year to year, and they are entitled to recover from the Lumpkin Investment Company a six-eighths undivided interest in the land. Judgment is prayed for a six-eighths undivided interest in the...