Johnson v. Sears
| Decision Date | 07 June 1945 |
| Docket Number | 15186. |
| Citation | 34 S.E.2d 541,199 Ga. 432 |
| Parties | JOHNSON et al. v. SEARS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition in this case, showing affirmatively that the plaintiffs were guilty of laches, was properly dismissed on general demurrer.
The heirs at law of Jincey Wood (all her children) filed an equitable petition against H. F. Sears, which as amended alleged that at the time of the death of Jincey Wood sometime prior to October 5, 1926, she was the owner of a one-half undivided interest in described real estate; that she died intestate, 'owing no debts that were not subsequently paid;' that there was no reason for the sale of the described real estate for the purpose of the payment of debts, and there was no demand on the part of the heirs for a sale of the property; that, prior to the death of Jincey Wood, the defendant had negotiated with her for the purchase of the property, the negotiations being instigated by the defendant and Daniel Wood, the husband of Jincey Wood but the negotiations had failed because Jincey Wood did not desire to sell the property and refused to do so; that, after the death of Jincey Wood, Daniel Wood, the father of the plaintiffs and the owner of the other one-half interest in the property, procured the appointment of himself as administrator of the estate of Jincey Wood, and immediately thereafter entered into negotiations for the sale of the entire interest to the defendant; that the procurement of such appointment was not until after an agreement had been reached between Daniel Wood and the defendant, acting in fraud against the interest of the estate and the creditors and distributees, that Daniel Wood would sell and convey the entire interest in the property including the one-half interest of the intestate, and other lands, in exchange for described lands (on which there was an outstanding deed to secure debt for $1000) and $2500 in cash.
It was further averred that, after his appointment as administrator, Daniel Wood applied for and secured an order from the court of ordinary for the sale of the property, and in pursuance of the order, on October 5, 1926, he offered the property for sale at public outcry, having in the meantime called upon one of the petitioners, Jincey Wood Johnson, and requested that she accompany him to the place of sale and bid for the interest of her mother in the land for the sum of $1000, which was a part of the fraudulent conspiracy previously charged; that the petitioner, Jincey Wood Johnson, 'was then a single woman, somewhat unlettered and altogether subservient to the wishes of her father, and what she did at the premises was at his direction and instigation, and under his domination and influence,' and for the purpose of carrying out the fraudulent collusion previously alleged, 'but such purpose was to her at that time unknown and unsuspected;' that the petitioner Jincey Wood Johnson, at the instigation and command of her father, made a bid of $1000 for the property and was thereafter advised that the bid had been accepted; that at the time of the sale the defendant and his attorney were present, and while the sale was made on October 5, 1926, no deed was executed until October 22, 1926, when the administrator caused the petitioner, Jincey Wood Johnson, to return with him to the office of the defendant's attorney, where three deeds had previously been prepared for execution--one from the administrator to the petitioner, Jincey Wood Johnson, reciting a consideration of $1000, conveying the one-half interest of the intestate; another from Jincey Wood Johnson to the defendant, conveying the same property, for a recited consideration of $1200; and another from Daniel Wood individually, to the defendant, conveying his one-half interest in the property for a recited consideration of $3800; that the deeds were executed and were witnessed by the parties present, the witnesses including the defendant and his attorney; that no money was paid by the petitioner, Jincey Wood Johnson, for the deed from the administrator, and none was received by her for the deed to the defendant; that the sale was for the convenience of Daniel Wood, the administrator, and for the purpose of carrying out the conspiracy, which enabled the defendant to obtain color of title to the whole of the property described; that the warranty deed from the petitioner, Jincey Wood Johnson, to the defendant was made at the instance, request, and direction of Daniel Wood, and the petitioner received no part of the consideration mentioned in the deed, or other remuneration or thing of value, and the deed was made as a part of the fraudulent scheme to divest the estate of Jincey Wood of title to the property; that the entire transaction was part of a fraudulent scheme to deprive the petitioner, Jincey Wood Johnson, and her brothers and sisters, of their interest in their mother's estate, and did deprive them of their interest, and the defendant was a conspirator with their father in the transaction; that the purported sale was in legal effect a sale by the administrator to himself, and was therefore illegal and void, and the administrator's deed and the warranty deed to the defendant are clouds on the title of the property and should be cancelled; that 'Daniel Wood, the administrator of Jincey Wood, is dead, and there is no administrator of his estate;' that in pursuance of the fraudulent scheme of the defendant and Daniel Wood, the petitioners were 'illegally deprived of the possession of their interest in the estate of their mother;' that the petitioners 'were of immature age at the time of the transaction, placed implicit confidence in their father, and did not learn that it had been misplaced until after his death;' that the defendant has never been a bona fide claimant of the one-half interest in the property, and at all times since the transaction has had knowledge of the fraud practiced on the petitioners, having actually participated in the fraud, not now entitled to plead laches; that the rents and profits of the one-half interest in the property amount to $500 per year. The plaintiffs prayed for: (a) An injunction, restraining the defendant from alienating or encumbering the title to the property; (b) cancellation of the deeds; (c) a judgment for mesne profits; and (d) a decree of title in the estate of Jincey Wood.
The defendant filed a general demurrer to the petition, which was renewed to the petition as amended, on the grounds, among others, that the petition set forth no cause of action; that the allegations show that the action is barred by the statute of limitations and laches; that no...
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