Luke v. Ellis
| Docket Number | 15555. |
| Decision Date | 11 October 1946 |
| Citation | 40 S.E.2d 85,201 Ga. 482 |
| Parties | LUKE v. ELLIS et al. |
| Court | Georgia Supreme Court |
Elsie H. Griner and William Story, both of Nashville, for plaintiff in error.
Jack Knight and J. P. Knight, both of Nashville, for defendants in error.
Leon Luke filed a suit against his former wife, Mrs. Grovie Luke Ellis, and their three minor children named, seeking cancellation of a deed that he had made to them conveying several tracts of land. He made in his petition substantially the following allegations:
Paragraph 3. On January 29, 1944, the plaintiff's former wife, Mrs Grovie Luke (now Mrs. Grovie Luke Ellis), accosted him with the statement that he did not
have a legal and valid divorce, and that if he wished to avoid prosecution at her hands, it was necessary for him to execute to her and their three children a deed to the property in question. Said Mrs. Ellis further demanded that if he wished to avoid the prosecution which she threatened to instigate, he use whatever means necessary to procure the signature of his father, B. M. Luke, on said deed, the plaintiff having acquired the land in question from his father by deeds containing restrictions or limitations. When the plaintiff exhibited what she was inclined to construe as reluctance or hesitancy, she augmented her original threat of prosecution with the additional threat of penal confinement unless he would instantly and without further delay comply with her original demand and execute and deliver to her the deed which she coveted. Thereupon petitioner and his father, B. M. Luke, acting under the fear compulsion, and intimidation and the probable result of her fraudulent assertion, relented to her coercion and signed and delivered to her a deed purporting to convey the described lands.
Paragraph 4. Some time after the making of said purported deed, the plaintiff learned upon thorough investigation that he did have a good, valid and legal divorce; however, he has delayed bringing this action before now, for the reason that his father, B. M. Luke, has been at the point of death for many months, and the plaintiff did not care to worry his father or aggravate his feeble condition, and has therefore desisted from bringing this suit until after the death of his father. The defendant, Mrs. Grovie Luke Ellis, has acquiesced in the legality of said divorce and has married since the execution of the deed sought to be cancelled.
Paragraph 5. The deed attached as an exhibit is of no force and effect, is illegal and void, and if it is a cloud upon the plaintiff's title it should be cancelled.
Paragraph 6. The defendant, Ellis, has taken charge of the property in question and has collected the rents and profits which amount to about $4,500, but which the plaintiff does not seek to recover for the reason that a portion of said money was probably used for the benefit of the three children.
Paragraph 7. The plaintiff shows that the deed is void and should be cancelled for the following reasons: He acquired said land by deeds executed and delivered to him by his father, B. M. Luke, on November 14, 1940, in each of which deeds the grantor retained a life estate in said lands, and further stipulated that the grantee 'cannot sell or in anywise encumber or create any lien on said property for a period of' ten years after the death of the grantor. The plaintiff thus had no authority whatever to execute the deed to the property in question, because he, under the solemn terms set out in the deeds from B. M. Luke, was required to hold said property for ten years after the death of his father, B. M. Luke, and B. M. Luke had no right or authority to execute the deed to the property in question, for the reason that on November 14, 1940, he parted with his title thereto, subject only to his life interest therein; that the deed sought to be cancelled was procured by the defendant, Mrs. Ellis, through fraud, intimidation, and threats of criminal prosecution, and was without consideration.
Paragraphs 8, 9. The plaintiff also alleged that the defendants were insolvent, and that it was necessary for the court to appoint a receiver to take charge of the property, to collect rents and profits, and protect and preserve the property under order of the court. The plaintiff is without an adequate remedy at law, and therefore comes into a court of equity seeking equitable relief.
The plaintiff prayed for the appointment of a receiver, for temporary and permanent injunction, cancellation, process, and general relief.
The defendant, Mrs. Grovie Luke Ellis, for herself, and the children by her as guardian ad litem, filed a general and special demurrer to the petition. Grounds 3 and 4 of the demurrer were substantially as follows:
3. Defendants demur specially to all of the allegations contained in paragraphs 3 and 4 of the petition which refer to any
divorce of Leon Luke, upon the ground that nowhere in said paragraph or elsewhere in said petition is there incorporated or attached as an exhibit any copy of any good, valid, and legal divorce or any other kind of divorce, so as to put defendants upon notice of what she (Mrs. Ellis) is called upon to defend against, and therefore all said allegations are mere conclusions of the pleader.
4. Defendants demur specially to that part of paragraph 4 of the plaintiff's petition which alleged that 'the defendant, Mrs. Grovie Luke Ellis, has acquiesced in the legality of said divorce,' upon the grounds:
(a) There are no allegations of fact set out in said paragraph or elsewhere in said petition which would show that Leon Luke, her former husband, had any divorce in which she could or did acquiesce.
(b) There are no allegations of fact set out in said paragraph or elsewhere in the petition, showing how or in what manner Mrs. Ellis acquiesced in the validity of said divorce; nor is it alleged that she had not on her own behalf procured a divorce from Leon Luke on her own petition.
Therefore, all said allegations are mere conclusions of the pleader, and are wholly insufficient to put the defendants upon notice of what they are called upon to defend against.
The demurrer contained numerous grounds, both general and special, but none others attacking the petition or any part of it for failure to attach a copy of the divorce proceedings.
At an interlocutory hearing on April 20, 1946, the judge passed the following order:
'The above stated case coming on regularly for interlocutory hearing before me on Saturday, April 13, 1946, at which time demurrers and pleas in abatement were submitted by defendants, and on motion of counsel for plaintiff the hearing thereon was postponed until this date in order that plaintiff have time in which to amend his petition; and,
'That on this the date set for further hearing, all parties being present, plaintiff again moved for a continuance on the ground that he had not been able to get copy of the alleged divorce proceedings mentioned in his petition in order to amend his petition to meet the demurrer.
'Whereupon it is hereby ordered that the hearing this date fixed be and the same is hereby postponed until Saturday, May 4, 1946; and it is further ordered that, unless said petition be amended to meet said demurrers, and a copy of said alleged divorce proceedings attached to such a...
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