Pound v. Smith

• Decision Date: 14 February 1917
• Docket Number: (No. 235.)
• Parties: POUND v. SMITH et al.
• Court: Georgia Supreme Court

91 S.E. 405

(146 Ga. 431)

POUND

v.SMITH et al.

(No. 235.)

Supreme Court of Georgia.

Feb. 14, 1917.

(Syllabus by the Court.)

Error from Superior Court, Hancock County; J. B. Park, Judge.

Action by the Misses Treasie and Acquillian Smith against J. M. Pound, as administrator of the estate of John T. Smith, deceased. From order that grounds of demurrer be sustained as to all parts of petition and prayer for reformation of deeds, and overruled as to dismissing petition and as to other matters therein contained, defendant brings error. Reversed.

Misses Treasie and Acquillian Smith filed their petition against J. M. Pound, as administrator of the estate of their brother, John T. Smith, in which they prayed for reformation, specific performance, injunction, and general relief. The defendant filed his answer, and also a demurrer. The demurrer was sustained as to certain grounds, but as to others it was overruled. The court allowed the plaintiffs to amend their petition. Upon the trial a verdict was returned, awarding to the plaintiffs one of the two tracts of land in controversy. A motion for a new trial was overruled, and the defendant excepted to this, as well as to the other rulings adverse to him.

The material allegations of the petition are as follows: J. M. Pound, as administrator of the estate of John T. Smith, deceased, under an order of the court of ordinary, is proceeding to sell at public outcry two described tracts of land. This land is the property of the plaintiffs. They together with their brother, John T. Smith, contracted with E. F. Pound, now deceased, to purchase one of the tracts of land described, and later contracted with him to purchase the other tract. At the time of the purchase the plaintiffs and their brother were residing on one of the tracts, and it was agreed that they would purchase both tracts, and that the same should be held and owned "in common by them during their lives, and that the survivors should take the fee to the entire property." After the purchase as agreed upon, the plaintiffs and their brother resided and farmed upon the lands, each working thereon for their common benefit, and from the proceeds of the property and the results of their joint labor it was paid for. The sisters, being illiterate and inexperienced in business affairs, each year turned over the crops as they were gathered to their brother, to market, with the instruc-tion and understanding that the money arising therefrom should be paid on the purchase price of the lands which they had bought. The sisters labored in the field, side by side with their brother, and performed all the domestic duties. They practiced "the most rigid economy, never reserving one penny of compensation, except their meager purchase of wearing apparel, in order that every cent from said crop and other proceeds from said land should be applied to the purchase money of said land." One of the sisters, Treasie Smith, paid in actual cash, at the time of the first purchase, "$350 on the purchase price of the land, and at subsequent times her earnings as a midwife were contributed to the payment of the land. Until after his death the plaintiffs did not know that the titles to the land were made to their brother individually, as he had concealed this fact from them during his life, though they had intrusted him to make the payments upon the land, and to have the deeds executed to the three jointly, in accordance with their agreement.

If the title be permitted to stand as it is, and the land be administered as the estate of their brother, the plaintiffs will be defrauded of their right and title thereto. The vendor of the land is dead, and his estate has been administered, and the administrator discharged. Should the land be sold by the administrator of their brother's estate, the plaintiffs will suffer irreparable loss. The prayers are as follows:

"(a) That the said two deeds hereto attached be reformed in conformity with the agreement between these petitioners and their said brother, Jno. T. Smith, expressing the grantees therein as petitioners and the said Jno. T. Smith jointly, for their natural lives, with remainder over to the survivors.

"(b) That the title to the said land be decreed to the petitioners for their natural life, with the remainder over to the survivors.

"(c) That the said J. M. Pound, administrator of the estate of said Jno. T. Smith, be perpetually restrained and enjoined from administering said l»nd as the property of estate of said Jno. T. Smith, or from any wise interfering therewith in his capacity as administrator aforesaid.

"(d) For such other and further relief as petitioners in equity are entitled to."

In his answer the defendant contended that the brother, John T. Smith, was the sole owner of the land, which he had paid for from his own resources; that there was no concealment of his ownership; but that the deeds to both tracts of land were properly recorded in the clerk's office, and therefore were notice to all who might want to know of their contents.

The grounds of demurrer to the petition were the following:

"(1) There is no cause of action alleged.

"(2) There is no cause of action alleged by which a court of law or equity would be authorized to reform a deed or deeds.

"(3) That petitioners have no legal or equitable right to have the title to land described in petition to be decreed to them for their natural Uvea, with remainder over to survivors. They have no such right of a specific performance against this defendant.

"(4) If petitioners have any cause of action at all, it would be a suit for damages for fraud and deceit. Defendant further demurs and moves to dismiss paragraph 3 of petition, because, if petitioners intend to claim the property described in the foregoing paragraph, the claim should have been filed with the ordinary of Hancock county, as the law provides for claims in such cases.

"(5) The petition does not allege or set forth a mutual mistake by the parties to the deeds which petitioners pray to have reformed.

"(6) The petition does not allege any mistake by either E. F. Pound or John T. Smith, the parties named in the deeds.

"(7) The petition alleges concealment, deceit, and fraud on the part of John T. Smith, and no mistake on the part of E. F. Pound.

"(8) Defendant specially demurs and moves to dismiss petition, because petitioners have no legal or equitable right to have the contracts reformed, which were made and entered into by other parties; and petitioners, not being parties to the contract, have no legal or equitable right to reform a contract making them parties thereto.

"(9) Defendant specially demurs and moves to dismiss paragraphs (a) and (b) in prayer, because no contract is alleged to have been made with E. F. Pound as grantor on one part,...