Potts v. Wilson
| Decision Date | 14 May 1924 |
| Docket Number | (No. 4184.) |
| Citation | 158 Ga. 316,123 S.E. 294 |
| Parties | POTTS et al. v. WILSON. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Cobb County; D. W. Blair, Judge.
Action by one Wilson against Kate Poster Potts, in which Roy Foster and others, by next friend L. S. James, intervened. Judgment for plaintiff, and defendant and interveners bring error. Affirmed.
W. A. James, of Atlanta, for plaintiffs in error.
HINES, J. Wilson, on October 31, 1923, brought suit in Cobb superior court, against Kate Foster Potts upon five promissory notes which he alleged were given by the defendant in part payment of the purchase money of a described tract of land, containing 50 acres, more or less, which he had sold her, and to which she held his bond for title. He prayed judgment for principal, interest, and attorney's fees, and for a special lien upon the land. In her answer to this suit the defendant admitted the substantial allegations of the petition. She alleged, in defense, that petitioner "practiced fraud on her in selling to her the land described in paragraph No. 5 of the petition, in that he agreed to sell her 50 acres, more or less, of land and the same was valued with the house and 5 acres for a residence, and that the land outside of the 5 acres with the house is of little value when this part of the property is cut off from the farm land, inasmuch as it was purchased for farming purposes and without the house and 5 acres could not be rented to a first-class tenant"; that she "held in her hands as administratrix certain large sums of money, which belonged to her children, namely, Roy Foster, Victor Foster, and Thelma Foster, who are children by a former marriage; that petitioner knew that she held this money as administratrix, and induced her to purchase this tract of land and invest the money belonging to the estate in it, which she did, and when it came to making the deed to the property purchased he would only make her a deed to that part of the premises purchased which did not embrace the house and 5 acres aforesaid"; that petitioner participated in the misapplication of the funds belonging to the estate, and knew at the time he was so doing, and so manipulated the deal as to hold to himself said 5 acres of land, which was the most valuable part Of the property purchased; that he accepted $3,000, which was a part of the estate's money, in payment of the whole tract, but reserved the most valuable part of the land, thereby perpetrating a fraud not only upon the defendant, but also upon said minor children; that there is no order of the superior court authorizing the expenditure of the funds belonging to the minor children; and that she had no experience in handling matters of this kind, and petitioner took advantage of this handicap in handling this transaction. She prayed that the trade between her and petitioner be rescinded and decreed null and void; that she have judgment against petitioner for $3,000, with interest thereon, and that it be fixed as a first lien on the property described in paragraph 5 of the petition; and that the deed to her by petitioner, his bond for title, and the notes sued on be canceled.
Roy Foster, Victor Foster, and Thelma Foster, minors, by their next friend, L. S. James, intervened and alleged that more than $2,000 of their money was misapplied and fraudulently invested in lands fully described in defendant's answer; that neither plaintiff nor defendant had any authority to invest their money in said lands, and it was an actual fraud upon them to do so; that they desired to intervene and set up their equities in this case; and that they adopted so much of the answer as set up that their money was illegally invested by defendant and plaintiff, except that the sum stated by defendant does not represent all their money misapplied in said deal. They prayed that they be made parties; that the trade between plaintiff and defendant be declared rescinded; that they have judgment for the amount due them, with principal and interest, against plaintiff and defendant; that the judgment fix a first lien on all the property described in the petition and answer, which was the subject-matter of the trade between plaintiff and defendant, wherein their money was invested; that the deed and bond for title made by plaintiff to defendant be canceled; and that they have such other and further relief as the principles of justice and equity entitled them to. Other pertinent facts appear in what is hereinafter stated.
1. Plaintiff offered an amendment to his petition, striking from his petition the words "fifty acres, more...
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