Fulgham v. Pate

• Decision Date: 09 November 1886
• Parties: FULGHAM et al., executors, v. PATE, administrator.
• Court: Georgia Supreme Court

77 Ga. 454

FULGHAM et al., executors, v. PATE, administrator.

Supreme Court of Georgia.

November 9, 1886

October Term, 1886.

1. Prior to the judiciary act of 1799, a court of equity had original and exclusive jurisdiction to establish lost deeds and other writings. By that act, a like power was conferred on courts of law, but this did not divest equity of a concurrent jurisdiction in such matters.

(a.) Where there are several persons residing in different counties interested in the subject-matter of the bill, a court of equity, having all the parties before it, and having acquired jurisdiction for the purpose of establishing a lost deed, will decree full and perfect relief to all the parties touching the subject-matter involved.

2. A sale made by a married woman to her husband, without being allowed by the order of the superior court of the wife's domicile, is void. Such a deed could have no effect except to be a cloud upon the title to the property, and a court of equity may cause it to be delivered up and cancelled. A bill for that purpose was not without equity.

3. Equity cases are to be tried in the county where the defendant against whom substantial relief is prayed resides and a bill filed there was not demurrable on the ground that land lying in another county was involved in the litigation.

Equity. Lost Papers. Jurisdiction. Venue. Before Judge CARSWELL. Washington Superior Court. March Term, 1886.

Reported in the decision.

J. T JORDAN; J. K. HINES, for plaintiffs in error.

EVANS & EVANS, for defendant.

BLANDFORD Justice.

The defendant in error exhibited his bill on the equity side of the superior court of Washington county against W. H. Fulgham and Jacob Fulgham, as the executors of Matthew Fulgham deceased, and others, as the heirs at law and legatees under the will of said deceased. The bill alleged that Matthew Fulgham was the executor of one Pilcher, deceased, the father of Sarah Pate, and that in settling with said Sarah, he executed to her a deed to a tract of land comprising three hundred acres in the county of Glascock, as her share or interest in her deceased father's estate; that afterwards said Matthew intermarried with said Sarah; that during said coverture he procured her to convey said land to him, which she did upon consideration that said Matthew would, by deed or will, convey to her, the said Sarah, property of the value of twenty-five hundred dollars; ^[*] that said Matthew died and by his will left said Sarah only a life estate in certain property; and that she took and received no legacy under the said will of said Matthew. The said Sarah then intermarried with J. R. Pate, and then she died, leaving no children or heirs at law except said Pate. Pate took out letters of administration on the estate of said Sarah. The bill alleges that the deed made by said Sarah to said Matthew is void because the same was not allowed by order of the superior court of the wife's domicile. The bill alleged that the deed from Matthew Fulgham to said Sarah was lost, and prayed that a copy of the same be established in lieu of the lost original; it further prayed that the deed made by said Sarah to said Matthew during their coverture be cancelled as a cloud upon the complainant's title, and that an account be taken for mesne profits, and that the land be decreed to be the property of the estate of said Sarah. To this bill the defendants demurred, upon the grounds that there was no equity in the bill; that there was a full, complete and adequate remedy in a court of law; and that there was no jurisdiction in the superior court of Washington county, because the suit was respecting titles to land, which land was in Glascock county, the superior court of which county could alone hear and determine said case. The court overruled the demurrer, and to this decision defendant excepted, and now here assigns...