McWhorter v. Cheney

• Decision Date: 21 December 1904
• Citation: 49 S.E. 603,121 Ga. 541
• Parties: McWHORTER v. CHENEY.
• Court: Georgia Supreme Court

49 S.E. 603

121 Ga. 541

McWHORTER v. CHENEY.

Supreme Court of Georgia

December 21, 1904

Syllabus by the Court.

1. The wife of a head of a family may prosecute any appropriate remedy to prevent interference with her homestead interest.

2. Being under no legal disability to institute and maintain an action for the invasion of her homestead rights, she must assert her cause of action within the period of limitation.

3. Plaintiff's right to sue existed from the beginning of the alleged fraud, as she does not disclaim knowledge of the fraud, and the reasonable deduction from her petition is that she had contemporaneous knowledge of the various acts alleged to be fraudulent. A delay to sue for 18 years renders her demand stale.

Error from Superior Court, Greene County; H. G. Lewis, Judge.

Suit by S. H. Cheney against W. P. McWhorter. Judgment for plaintiff and defendant brings error. Reversed.

Saml. H. Sibley, for plaintiff in error.

James Davidson and James B. & Noll P. Park, for defendant in error.

EVANS J. (after stating the facts).

The first proposition to be determined in solving the rights of the plaintiff is whether the widow of the head of a family, who is the sole beneficiary under a homestead, is affected by the ordinary rules of limitation as applied to the recovery of her interest in the homestead property. It would seem that, if the wife of the head of a family could assert her rights under the homestead by filing a claim in her own name (Connally v. Hardwick, 61 Ga. 501), she could prosecute any other appropriate remedy to prevent interference with her homestead interest (Eve v Cross, 76 Ga. 693). Certainly, upon the refusal of the head of the family to sue, she could maintain an action for any deprivation of benefit to which she might be entitled under the homestead. Pritchett v. Davis, 101 Ga. 236, 28 S.E. 666, 65 Am.St.Rep. 298. The general rule is that limitation runs against all persons who are not under disability to sue. The wife or widow of the head of the family, being under no legal disability to institute and maintain an action for an invasion of her homestead rights, must assert her rights within the period of limitation. The plaintiff's cause of action accrued upon the fraudulent sale of the homestead, and her right to sue began as soon as she knew of the fraud, or by reasonable diligence could have known of it. She waited 18 years after the alleged fraudulent sale before instituting her suit. She insists that, even if the statute of limitations was applicable, her cause of action is not stale, because the defendant's possession of the land originated in fraud, and that no length of time could ripen such fraudulent possession into a prescriptive title. It is undeniably true that possession originating in fraud can never ripen into prescription; and, if the present suit was to recover the land, the defendant could not plead a fraudulent possession for more than seven years as a bar to a recovery against the true title. The plaintiff does not claim the title to the land, but only a usufruct therein, and her suit is brought to cancel the title of McWhorter as fraudulent, and to recover the mesne profits since he has been in possession, and to procure a decree for the use and occupation of the homestead premises during her life. As her husband joined with petitioner in the deed sought to be canceled, it would seem that his estate ought to be in some way represented in the litigation before his deed is vacated. Until the deed from plaintiff's deceased husband to McWhorter is legally vacated, the title to the reversion is in McWhorter. The deed may have been ineffectual to convey the homestead interest because of the alleged collusive conduct of McWhorter and plaintiff's husband; but it did convey the husband's reversionary interest, the homestead being taken out under the Constitution of 1868. Huntress v. Anderson, 110 Ga. 427, 35 S.E. 671, 78 Am.St.Rep. 105. ...