King v. King
| Decision Date | 20 April 1915 |
| Docket Number | (No. 314.) |
| Citation | 85 S.E. 95,143 Ga. 385 |
| Court | Georgia Supreme Court |
| Parties | KING. v. KING. |
(Syllabus by the Court.)
Error from Superior Court, Gordon County; A. W. Fite, Judge.
Action by Mrs. Annis King against E. F. King. Judgment for plaintiff, and defendant brings error. Reversed.
Mrs. Annis King brought her petition against E. F. King, and alleged substantially as follows: Her husband, A. J. King, is the owner of a tract of land consisting of "about seventy-two acres of lot of land No. 220 in the 7th district and 3d section of Gordon county." On the 4th day of January, 1895, "said tract of land was duly set apart by the ordinary of said county as a homestead for petitioner and her then minor children." The children have all arrived at the age of 21 years, and she is the only surviving beneficiary of the homestead. Plaintiff's husband is old and feeble, and cannot contribute anything to her support, and she is not able physically to perform any labor, and is dependent on the proceeds "of said tract of land" for a support, having no others means on which to subsist. The defendant, through and under a pretended deed, which was obtained through fraud and misrepresentation, has taken charge of and rented the tract of land, and the tenant now has a growing crop on it. The defendant will collect the rent when the crop is gathered unless he be restrained from so doing by the court. He has rented the land for the next year, and has forbidden plaintiff from going on or controlling the land in any way whatever. The deed under which he is claiming is fraudulent, and was procured by misrepresentation both to the plaintiff and her husband, A. J. King; the latter being, at the time of signing it, a fugitive from justice, and he signed it without any adequate consideration. It was procured without first obtaining an order from the superior court to sell the land and reinvest the proceeds of the sale, nothing has ever been paid for the land, and the deed is void. The defendantis insolvent, and is unable to respond in damages that will accrue in case he is allowed to collect the rents of the land. The damage will be irreparable, and the plaintiff has no adequate remedy at law. By amendment the plaintiff alleged as follows: A. J. King, under whom she holds by right of a homestead which appears of record in the clerk's office, is old and infirm and now in prison. The defendant (who is the son of plaintiff and of A. J. King) represented to them that George W. Brown, a son-in-law of plaintiff, was trying to get title to and possession of the tract of land without paying for it, and that he (defendant) wanted A. J. King and the plaintiff to sign a paper authorizing defendant to take charge of the land and defeat Brown in his effort to beat them out of it. Plaintiff cannot read and write and does not know a letter. She had to and did rely on what the defendant told her— that the paper she was signing was nothing but a contract authorizing the defendant to act for her in the matter, and she believed him and signed the paper, not knowing it was a deed; and upon these fraudulent acts and misrepresentations he took charge of the land and is collecting the rent therefrom. The deed was not read to her at the time of signing or at any time. The sale of the land has never been approved by the court. The plaintiff prays that the defendant be restrained from interfering in any way with her free and undisturbed use of the land, that he be restrained from collecting the rents of the land for the years 1913 and 1914 and ever thereafter, and that he be required to deliver up his deed for cancellation as a cloud on the title of A. J. King.
The defendant in his answer denied the material allegations of the petition, and averred as follows: He is in possession of the land and has rented it to a tenant who has a growing crop thereon, and he expects to collect the rent, as he has a legal right to do. He denies that he is holding possession through fraud and misrepresentation. He went into possession under a warranty deed and for a valuable consideration, the deed being signed by the plaintiff and her husband. G. W. Coffee was employed by the plaintiff and her husband to procure an order from the judge of the superior court for leave to sell the land as required by law, as in the case of the sale of homestead property; and the order was granted by the presiding judge of the court. Defendant denies that he is insolvent and unable to respond in damages and to account for the rent of the land. He bought the land in the utmost good faith, paid value for it, and is entitled to the rents, issues, and profits thereof. No homestead was ever granted to the plaintiff as alleged, and the paper purporting to be a homestead was never granted as provided by law.
The defendant also demurred to the petition as amended, because: (1) It set forth no cause of action. (2) There is no sufficient description of the property involved. (3) The alleged homestead is not set out nor made an exhibit to the petition. (4) It is not alleged from whom the defendant procured the alleged deed, whether from plaintiff or A. J. King or from some one else. (5) The petition showing that the defendant is in possession of the land, claiming under a deed, the plaintiff's remedy is by ejectment, not injunction. (G) There is no prayer for the recovery of the land.
The court overruled the demurrer, and the defendant excepted. The case proceeded to trial, and, after evidence submitted by both parties, the court directed a verdict and entered a decree in favor of the plaintiff against the defendant. Error is assigned on this direction, and because of certain other rulings which are noticed in the opinion.
M. B. Eubanks, of Rome, and P. A. Cantrell, of Calhoun, for p...
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