Harris v. Rowe

• Decision Date: 16 January 1946
• Docket Number: 15292,15299.
• Citation: 36 S.E.2d 787,200 Ga. 265
• Parties: HARRIS et al. v. ROWE et al. HARRIS et al. v. ROWE et al.
• Court: Georgia Supreme Court

36 S.E.2d 787

200 Ga. 265

HARRIS et al. v. ROWE et al.

HARRIS et al. v. ROWE et al.

Nos. 15292, 15299.

Supreme Court of Georgia

January 16, 1946

Syllabus by the Court.

1. The trial court did not err in overruling the demurrers to the petition as amended, filed by all the defendants, on the grounds of misjoinder (a) of parties defendant, and (b) of causes of action; or as being multifarious and duplicitous since the petition, although filed by several plaintiffs against several defendants, related to matters of the same nature, forming a connected series of acts in all of which the defendants were more or less concerned.

(a) The allegations of the petition as amended, to the effect that one of the defendants wrongfully took charge of the property and received profits for which she has not accounted, were not subject to demurrer on the grounds that the allegations were irrelevant immaterial, prejudicial, and that they together with other allegations did not set forth any cause of action.

2. Where a father died intestate while seized and possessed of land on which there was a peach orchard, and an oral agreement was entered into between his widow and children to work the orchard, and from the proceeds to pay the debts of the deceased, and, when all the debts were paid, for the mother and children to own the property, title to which for convenience would be held by the oldest child--a petition alleging that such an oral contract has been fully performed by all the parties, but that upon the death of the oldest child his widow wrongfully took control of and claimed the property as her own, is sufficient against general demurrer to allege the creation of a constructive trust.

3. Where the widow of one who held property under a constructive trust for the benefit of other persons took control of such property after her husband's death, the statute of limitations will not begin to run against those for whom the property was held in trust until the person holding, whether individually or as the person representative of the deceased gives notice to the equitable owners that possession is claimed adversely to them, or until other circumstances are shown which would be the equivalent of such notice.

4. While the petition does not allege insolvency of the defendants, such an allegation is not necessary to obtain injunctive relief where the petitioners allege that they are without an adequate remedy at law and that an injunction is necessary to avoid a multiplicity of suits.

5. Since no ground of demurrer sought to strike the prayer for a receiver, and it does not appear that the trial judge ruled on this question, it is unnecessary to determine whether or not the petitioners were entitled to the appointment of a receiver.

The question here presented is whether or not the allegations of the petition as amended were sufficient to withstand the general and special demurrers interposed by the respective defendants.

Mrs. Kate Harris Rowe and four others filed in Meriwether superior court, against Mrs. R. A. Harris, individually and as the personal representative of R. A. Harris, deceased and against H. G. Harris and J. T. Harris, a petition which as twice amended alleged substantially the following: The petitioners and the defendants, H. G. and J. T. Harris, are the children of T. D. Harris, who died intestate in September, 1922, and Mrs. Della Harris, who is now in life and resides at the Harris home place. Mrs R. A. Harris is the widow and personal representative of the estate of R. A. Harris, deceased brother of the petitioners. At the time of the death of the petitioners' father, he owned and was in possession of a described 200-acre tract of land in Meriwether County on which 15,000 peach trees were planted; and he was likewise in possession of sufficient farm tools, equipment, and mules to operate the land. The father owed approximately $9,000, and three named creditors held security deeds to portions of the 200-acre tract. The petitioners and their defendant brothers were then of ages varying from 7 to 25 years, and lived with their mother on the home place. The family had no money, but did have sufficient corn, meat, and other supplies to provide for themselves. None of the children or their mother had had any business training and no formal education. All of the children together with their mother discussed their financial situation, and covenanted and agreed orally among themselves that, if the creditors would give them time, they would remain at home and by their labor pay the debts of the deceased father; and that, when all of the debts were paid, they would own the 200 acres of land together, share and share alike. The petitioners orally agreed further that, for the sake of convenience, the oldest son, R. A. Harris, would apply for letters of administration upon the estate of their deceased father; and that as soon as practical he would acquire title to the 200 acres, with the understanding that the land together with the personal property would belong to all of them and their mother, share and share alike. Pursuant to the agreement, R. A. Harris was appointed administrator and operated the peach orchard during 1923, 1924, and 1925. The petitioners together with their mother worked the land, receiving no pay therefor, but acting pursuant to their agreement to pay the debts of their deceased father and own the premises themselves, share and share alike. During 1925 the peach orchard on the property made an abundant crop, which sold for a good price. Pursuant to an order of the court of ordinary, R. A. Harris on October 8, 1925, sold the equity of redemption in the 200 acres to J. S. Peters for a recited consideration of $5. On the same date J. S. Peters, by warranty deed which recited a consideration of $5, conveyed the property to R. A. Harris individually. The taking of the title by R. A. Harris individually was in accordance with the agreement between the petitioners, their mother, and their defendant brothers, it being understood that the oldest son should take the deed in trust, for convenience in financing the operation of the peach orchard. Within 8 years, through the joint labor of the petitioners, together with their mother and their defendant brothers, the debts of the father were paid from the profits on peaches and cotton grown on the land, and R. A. Harris, as administrator, was issued letters of dismission by the ordinary. The petitioners had the uttermost confidence in R. A. Harris, and were pefectly satisfied for the deeds to the 200 acres to remain in him. The mother maintained the home place, and the petitioners together with their defendant brothers were in possession. In 1929, R. A. Harris was married to Eva Harris, and brought his bride to the family homestead. She became a part of the family, and was told of the covenant that the children had made among themselves and of the long years of toil that each of them had performed, and that the agreement had been faithfully carried out by each brother and sister together with their mother. The agreement was fully performed by the fall of 1930. After all the days were paid and the covenant was fully performed, four of the children moved off of the home place. The petitioners' mother together with the remaining children continued to live on the property. R. A. Harris managed the financial operations of the farm until November, 1943, when he died suddenly with a heart attack. The petitioners did not at any time between 1930, when R. A. Harris was dismissed as administrator, up until his death in November, 1943, ever ask for an accounting because they realized that the operation of a peach orchard was a hazardous business, and they knew that he would have made a prompt accounting if there had been any profits above operating expenses. After the death of R. A. Harris, his widow, Mrs. Eva Harris, as his personal representative and individually as his sole heir at law, claimed to own the fee-simple title in the 200 acres. She wrongfully assumed control of the property, and in 1944 harvested an abundant peach crop for which she received, together with other crops, a net profit of approximately $30,000. She has never accounted to the petitioners for their pro rata share of the profits or rents, and is indebted to them in a sum equal to 5/9 of all net profits or rents received during 1944. No overt act in violation of the petitioners' rights occurred until after the death of R. A. Harris. On July 28, 1944, Mrs. Eva Harris executed a warranty deed conveying 100 acres of the land in question, together with other land, to the defendants, H. G. Harris and J. T. Harris, and took from the grantees a security deed. The recited consideration was $25,000. Eva Harris had a lawful claim to only a 1/9 undivided interest in the 200 acres, and the above conveyances were fraudulent acts with the intent to deprive the petitioners of their title in the property. The petitioners have no adequate remedy at law, and it is necessary that a court of equity intervene in order to avoid a multiplicity of actions. There is a large and valuable peach orchard growing on the property, and the petitioners will suffer irreparable injury unless a receiver is appointed. The prayers are for process, injunction, cancellation, an accounting for rents and profits, appointment of a receiver, and a decree of title in the petitioners as their interests may appear.

The defendants, H. G. Harris and J. T. Harris, demurred to the petition as amended on general and special grounds. The defendant, Mrs. R. A. Harris, individually and as personal representative of R. A. Harris, deceased demurred to the petition as amended on substantially the same grounds as were urged by the other two defendants, and also...