Larkins v. Boyd
| Decision Date | 16 February 1949 |
| Docket Number | 16505. |
| Parties | LARKINS v. BOYD et al. |
| Court | Georgia Supreme Court |
Rehearing Denied March 16, 1949.
Syllabus by the Court.
1. By reason of the relationship of principal and agent existing between the parties, the petitioners in this case had a right to expect a full revelation of all pertinent facts which might jeopardize their rights in the property entrusted to the defendant, and the failure to reveal such facts by the defendant amounted to such fraud as would extend the right of the petitioners to bring an action to recover their property at any time within a period of seven years after the discovery of the fraud.
2. There is nothing in the petition to show any delay on the part of the petitioners in bringing the action, after the discovery of the fraud of their agent, which would render the ascertainment of the truth more difficult, and the ground of the demurrer which contends that the petition is barred by laches is without merit.
3. Whether or not the contract in this case as originally made was within the statute of frauds, Code, § 20-401, it now clearly falls within the exceptions to the provisions of such statute, as set forth in divisions 2 and 3 of the Code, § 20-402.
4. The contention that the contract between the parties was without consideration is without merit.
5. Other grounds of demurrer, not specifically dealt with, are without merit.
6. The petition stated a cause of action, and it was not error to overrule the demurrers of the defendant.
Mamie Futch Boyd and James Futch filed their equitable petition against Nettie Larkins. The petition, as amended, in substance alleged: The petitioners were the owners and in possession of described property. In September, 1938, the petitioners entered into a solemn agreement with the defendant, by the terms of which the defendant would act as their agent for the purpose of taking over such property renting it, collecting rents, and paying taxes, accrued or that might accrue, until such time as the petitioners would return and have an accounting with their agent, the agent to receive a reasonable commission for her services. The defendant accepted the employment as agent with knowledge that there were delinquent taxes due at the time. The premises were delivered to the agent for the purposes set forth. She accepted the property under the terms of the agreement and has been continuously in possession of it, renting it and collecting the rents therefrom, from the date of the agreement to the filing of the petition. From time to time they remitted to the defendant various sums of money for the purpose of keeping the taxes paid and making repairs; and during the time the defendant has been in possession of the property she has collected rents of $797. In August, 1940, there were delinquent taxes of $76 due to the State and County, inclusive of the year 1939, and at that time the defendant had in her possession a sum of money from rents in excess of the $76 with which to pay the taxes, but the defendant failed to do so, and the property was sold and bid in by Thomas County for $76. Thereafter the defendant redeemed the property, paying the sum out of rents in her possession, and a deed was made by Thomas County to the petitioners, which deed the defendant has not had recorded. In 1940 there were delinquent taxes, due the City of Thomasville, of $93.05. In August, 1940, the city sold the property for delinquent taxes, at which time the defendant had in her possession $69.05 (received from rent of the property). The defendant permitted the property to be sold, and at the sale bid it in in her own name and acquired a deed thereto, which she did not have recorded, but concealed it, until August, 1947, when she caused it to be entered upon the deed records. After taking the deed in her own name, the defendant returned the property for taxation for the years 1941 and 1942 as the property of the petitioners, and thereafter returned the property for taxation in her own name. The petitioners had no notice, knowledge, or reason to suspect that this property had been sold for the delinquent taxes due the City of Thomasville until the recording of the tax deed in 1947. Upon discovering the fraudulent conduct of the defendant, they demanded a statement and settlement of their accounts with her, and that she deliver the property to them. At the time the petitioners discovered that the defendant held a tax deed from the City of Thomasville, the defendant had in her possession, unaccounted for, rents from the property, together with advances made by the petitioners, in the sum of $496.36. The defendant has paid all taxes on the property since 1940 out of rents accruing from the property, and has been reimbursed out of such rents for all delinquent taxes paid by her; and after deducting all delinquent taxes and current taxes, the defendant has in her possession from rents of the property $496.36. An itemized statement, as 'Exhibit A,' is attached, showing the amounts alleged to have been collected as rents and the amounts expended in the payment of taxes. Demand has been made on the defendant to surrender and deliver up for cancellation the tax deed that she has acquired to the property, which she has refused to do. The defendant has converted to her own use the proceeds arising from the rent of the property, and is now liable to account for all rents and profits since she obtained possession of the property. She has not taken any steps to perfect the tax deeds under which she claims, as required by law. The petitioners stand ready to give effect to any and all equitable rights of the defendant with relation to the property as may be determined by the court. In view of the facts alleged, the defendant is holding the property in trust for the petitioners, and the tax deeds held by the defendant do not convey title to her, either legal or equitable, as against the petitioners. The deeds are a cloud upon the petitioners' title and should be delivered up and canceled.
The prayers were: for the process; that the defendant be enjoined from interfering with the possession of the property by the petitioners; that the tax deeds be declared null and void and canceled as a cloud upon the petitioners' title; that title to the property be decreed in the petitioners; and that they have an accounting for all rents and profits coming into the hands of the defendant since she took possession of the property; for the appointment of a temporary and permanent receiver; that the defendant be enjoined and restrained from encumbering the property; and for other and further general relief.
The demurrers to the petition as amended were overruled, and the exception is to that judgment.
Jesse J. Gainey, of Thomasville, for plaintiff in error.
Titus & Altman, of Thomasville, for defendants in error.
1. Counsel for the plaintiff in error (defendant in the court below, and hereinafter called the defendant) contends in his brief that an action to cancel a deed must be brought within seven years, that more than seven years elapsed between the date of the execution of the deed and the filing of the petition, and that the action is therefore barred.
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