Wall v. Wall
| Decision Date | 20 March 1933 |
| Docket Number | 9177. |
| Citation | 168 S.E. 893,176 Ga. 757 |
| Parties | WALL v. WALL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In action ex contractu all contractors jointly liable must be joined, but one, any, or all of several joint tort-feasors may be sued.
Dismissal of action, partaking of nature of contract and tort, against one of defendants, waived portion of action construable as being ex contractu (Civ. Code 1910, § 4407).
Where petition can be construed either as suit in contract or for breach of duty arising out of contract, latter construction will be adopted.
Where parties conspire to defraud plaintiff or willfully misrepresent material fact to induce plaintiff to act to plaintiff's injury, action will lie for damages from deceit resulting (Civ. Code 1910, §§ 4406, 4419, 4623, 4626).
Property bought with money fraudulently obtained is impressed with constructive or implied trust (Civ. Code 1910, §§ 3739(2), 3761, 3785).
Proof of conspiracy to defraud renders act of one conspirator in defrauding injured party act of all conspirators.
Equity has jurisdiction of cases involving implied or constructive trusts (Civ. Code 1910, §§ 3739(2), 3761, 3785).
Where specific funds of plaintiff are traced to any of defendants who conspired to defraud plaintiff, dismissal of suit as to one defendant will not affect plaintiff's rights.
Petition alleging defendants carried on systematic scheme and "eloigned" petitioner's property, and praying that constructive trust be declared in property purchased with funds "eloigned," stated tort action; hence entire suit was not dismissible because plaintiff dismissed suit as to one defendant (Civ. Code 1910, §§ 3739(2), 3761, 3785, 4406, 4407, 4419, 4623, 4626).
Allegations of petition showing that defendants "eloigned" and took certain money from plaintiff's possession without her consent, in violation of agreement, did not show a breach of contract, but a trespass vi et armis; the word "eloign" being merely a euphemistic designation of what might well be called larceny from the person, or larceny from the house, even if the omission of the technical statement "putting in fear" prevented it from properly being called robbery.
1. As to parties defendant in tort, one, or any, or all of several joint wrongdoers may be sued.
2. Where a petition can be construed either as a suit in contract or as an action for a breach of duty arising out of the contract, the latter construction will be adopted.
3. Where parties conspire to defraud the plaintiff or make a willful misrepresentation of material fact to induce the plaintiff to act to his own injury, an action for deceit will lie.
4. Property which is bought with money obtained by fraud is impressed by a constructive or implied trust, and in equity may be subjected to the claim of the person who was deceived and defrauded by the conspirators, or any one of them. Proof of the conspiracy renders the act of one in deceiving and defrauding the injured party the act of all.
5. Equity has jurisdiction of cases involving implied or constructive trusts; and where specific funds are traced into the hands of any defendant who is shown to have joined with another in a conspiracy to injure the plaintiff, the dismissal of the suit as to one will not prejudice the other defendant or defendants, or affect the rights of the plaintiff; for the question as to any right of contribution which might exist between the tort-feasors does not concern the plaintiff.
6. Property construed, the action was in tort, and the plea of nonjoinder was not available. The petitioner had the right to dismiss, as she did, as to one of the parties named as defendants, and to proceed solely against the remaining defendant.
Error from Superior Court, Randolph County; C. W. Worrill, Judge.
Petition by Mrs. T. W. Wall against Pauline Hendry Wall and another which was dismissed as to defendant Andrew Low Wall. Suit was dismissed, and plaintiff brings error.
Reversed.
Olin Hammock, of Shellman, for plaintiff in error.
Jas. W Harris, of Cuthbert, for defendant in error.
The plaintiff filed a petition against Pauline Hendry Wall, widow of petitioner's deceased son B. T. Wall, and against Andrew Low Wall, a son of petitioner, alleging substantially as follows: On November 27, 1929, petitioner conveyed to B. T. and Andrew Low Wall her life interest in certain property left by her husband, upon the representations that they would support her for the remainder of her life, and that her property could thus be more easily handled for her benefit. By successive conveyances she and her sons conveyed certain of said lands to third persons; and about August, 1930, there remained in the names of her sons, or of Pauline Hendry Wall, only a portion of said realty. In said month petitioner filed her petition (only as to such land as was still in their possession) to have her deed to her said sons canceled on the ground of their failure to carry out their agreement to support her, and on other grounds of fraud specified. Pauline Hendry Wall was a defendant in that suit, and was charged with knowledge of the fraud alleged. She and petitioner's two sons told her that if she would release her suit and consent to the sale of the remaining lands, they would give her one-third of the proceeds of the sale, and would support her for life as initially agreed by them. Relying on these representations, petitioner dismissed said suit, and the land was sold and the entire proceeds delivered to petitioner in cash, "and she endeavored to keep and safeguard the same for her own use; but upon her return to her home where she was then living with defendants, her said sons, with the full knowledge and consent of her said daughter-in-law, Pauline Wall, took the said money over the protests of petitioner, and eloigned and carried the same away and has never made any accounting to your petitioner therefor." Plaintiff is fifty-nine years of age, and inexperienced in business; and she relied on her sons. Certain real and personal property (described in the petition) was purchased with said funds, and is in the possession of the defendants. "Defendants have carried on a systematic scheme to divest petitioner of all interest in and to said property left her under the will of her said husband; and, having secured possession thereof or of the proceeds thereof, have cast your petitioner out upon the world alone and penniless, and do not offer her a home nor contribute to her support." She prays that a constructive trust be declared in the property purchased with the funds eloigned from her possession; for an accounting; for a lien upon said property; and for general relief.
According to the allegations of the petition, the property on which it was sought to impress a trust consisted of certain lands bought and held in the name of AndrewWall, and certain other lands with described personalty purchased and held in the name of Pauline Hendry Wall. Pauline Hendry Wall answered, denying the material allegations in the petition, so far as applicable to her. At the trial, on the plaintiff's motion, the suit was dismissed as to Andrew Low Wall, it not appearing that service on him had been obtained. Pauline Hendry Wall thereupon moved to dismiss the case as to her, on the ground that the pleadings showed that she was a joint contractor with the other defendant, and recovery was sought against her as such; and that the plaintiff, having dismissed the case against the codefendant, could not proceed against her. The court dismissed the suit, and error was assigned on that judgment.
There was really but one real question presented for adjudication. The plaintiff having dismissed from the action one of the defendants, who was a resident of a different county and who had not been served, and intending to proceed against the remaining defendant, who resided in the county and who had been served, counsel moved to dismiss the action, on the ground that by the dismissal as to one of the defendants the plaintiff had no cause of action against the remaining defendant, because the action was ex contractu instead of ex delicto. In an action ex contractu against two or more joint contractors, the recovery must be upon their joint liability which requires that all must be joined in the action. The rule as to tort-feasors (or an action sounding in tort) is exactly the opposite. In an action for damages dependent upon a tort, the liability of each and every tort-feasor is several, though the tortious act was one in which all may have participated, and although the injured party may recover against one only slightly concerned in the wrongful act for the greatest injury which may have been inflicted by the most guilty of the tort-feasors, so if the action in this case, as stated in the petition, is clearly one ex contractu, the petition should have been dismissed. On the other hand, if the allegations of the petition can be construed as an action in tort or ex delicto, the plaintiff had a right to proceed to establish her case against only one of the three persons who are alleged to have participated in a conspiracy to defraud her, and who by fraud and deceit injured and damaged her. The alleged conspirators are two sons and a daughter-in-law of the plaintiff. The petitioner alleges that, pursuant to their conspiracy, she was induced, by statements and promises of her sons which they never expected to perform or to fulfill, to surrender to her sons her share of the estate of her deceased husband, the inducement held forth being that it would be better for her to have the property in their hands, and better for her future interest were it conveyed to them for their management, promising at the same time that they would...
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