126 Ga. 767 | Ga. | 1906
(After stating the facts.)
1. The suit was.returnable to the October term, 1904, of Warren superior court. The defendant died during that term and before the time for demurring to plaintiff’s petition had expired. At the succeeding term E. A. Lazenby, executor of the defendant’s will, was by consent made party defendant to the action, and he immediately offered amendments to demurrers filed by the original defendant, which were allowed over the objection of petitioner that they came too late. One of the errors assigned in the bill of exceptions is the allowance of these amendments. This assignment, in our opinion, is not meritorious. The time allowed -by law for filing demurrers had not expired at the death of the original defendant, and when the executor of his will was made a party defendant he came into the case where it was left by his testator, and as his testator had further time in which to demur, he was entitled to like time for such purpose.
2, 3. Several of the grounds of the demurrer attack the agreement, as set out in the third and fourth paragraphs of the petition and the amendments thereto, as being absolutely without consideration and a mere gratuitous or voluntary agreement. The action is to enforce a right which the plaintiff claims she acquired under the alleged agreement with Mrs. Jones. The petition, in effect, alleges, that Mrs. Belt, the plaintiff, had, since the death of her brother, Henry A. Jones, continuously contended that the property in dispute belonged to her, by reason of the fact that he had left a will in which he devised and bequeathed it to her, which will had been surreptitiously destroyed and never probated; that she was entitled to the possession of the property and the dividends which had accrued on the railroad stock since her brother’s death; that Mrs. Jones “contended otherwise,” that is, she denied the-contentions of Mrs. Belt; that in 1887 Mrs. Belt and Mrs. Jones compromised and settled their respective contentions by entering into an agreement under which Mrs. Belt released all claim to past dividends on the stock, for past rents and profits on the land, and agreed that Mrs. Jones should have the use of .the land during her life, Mrs. Jones, on her part, agreeing that Mrs. Belt should have the future dividends on the railroad stock and that she, Mrs. Jones, would, by will, devise and bequeath all the property to Mrs. Belt, if she survived Mrs. Jones, or, if not,
It is evident that the claims or contentions of Mrs. Belt were, originally, if meritorious, of considerable value. Whether there was ever really any merit in them, and, if so, whether at the time of the compromise agreement they had become barred by the statute of limitations, are immaterial questions, if at the time of the compromise she honestly believed in them and so made them in good faith. Her claim was that her contentions were meritorious, which was disputed by Mrs. Jones, and such dispute was compromised and settled by the alleged agreement. If, as alleged, the compromise agreement was made, the original claims or contentions of Mrs. Belt were at an end; they were merged in the agreement between the parties. In City Electric Co. v. Floyd County, 115 Ga. 655, it was held: “Where a disputed claim, dependent upon a legal question, is settled and adjusted by the parties, and a contract between them is accordingly made whereby one promises to pay to the other a sum of money, the promisor is bound thereby, though such question be really free from doubt, and properly solved would have absolved him from all liability.” In the opinion in that case, delivered by the present writer, the following language was approvingly quoted from a well known and often cited legal publication: “Moreover, in order to render valid the compromise of a claim, it is not essential that the matter should be really in doubt. It is sufficient if the parties consider it so far doubtful as to make it the subject of a compromise.” It is also well settled that in equity the termination of family controversies furnishes a sufficient consideration to support agreements for such purposes, and that its powers will be freely and readily used to enforce them. Watkins v. Watkins, 24 Ga. 402; Fulton v. Smith, 27 Ga. 413; Smith v. Smith, 36 Ga. 184.
4. Other grounds of demurrer were, that the petition did not set forth a cause of action, because the alleged agreement was a contract concerning the title to land; that it was not to be performed within one year from the making thereof; that it was testamentary in character; that the action was an effort to set up an express
5. Another ground of demurrer was, that the petition seeks to "have title to the land and railroad stock decreed to be in the plaintiff, without making the representative of Mrs. Jones’ estate a party defendant, which is alleged to be essential. It does not appear from the petition that there is, or ever was, any administration upon the estate of Mrs. Jones. As the petition alleges that the estate owes no debts and that the defendant, as the sole heir at 'law of Mrs. Jones, has received possession of all the property involved in this suit, the presumption is that there is no administration. Under such circumstances we can see no necessity whatever for having an administrator appointed and making him a party to this action. Upon the death of Mrs. Jones the title to the real estate vested in the defendant, as her sole heir at law, and as such he took possession of it. It seems well settled that an action for specific performance of a contract to convey land, where there is no purchase-money still to be paid, may, when the party contracting to convey is dead, be brought against his heir at law, without making the representative of his estate a party defendant. This was done in Rowe v. Maddox, 23 Ga. 431, where a son, after the death of his father, brought, against the other heirs at law of the father, a bill for specific performance of his agreement to devise certain lands to the complainant, but the question whether the suit was properly brought, without making the legal representative of the father’s estate a party defendant, does not appear to have been distinctly made, the ruling there made being simply that the bill was not subject to demurrer for the want of equity therein. In 26' American and English Encyclopedia of Law, 91, 92, it is said: “Equity will take cognizance of and specifically enforce a valid contract for the testamentary disposition of the estate of a decedent. Thus, agreements to devise, if founded upon a sufficient consideration, are enforceable against heirs, devisees, or representatives, as though the deceased obligor were a party to the suit, by treating
A statute of Iowa authorized a proceeding against an executor or administrator for specific performance of a contract to convey realty, made by the decedent; and in Fulwider v. Peterkin, 2 G. Greene, 522, it was held that, in such a proceeding, it was not necessary to make the heirs parties to the conveyance. But, on the other hand, in Judd v. Mosely, 30 Iowa, 423, it was held: “In a proceeding to enforce against an estate specific performance of a contract to convey real estate, executed by the decedent, the administrator is a proper but not a necessary party, and the proceeding may be against the heirs alone.” In the opinion it was said: “Generally, under the statute, the action may be brought in the first instance, against the executor, but the statute does not require that it must be against the executor or administrator. But for this statutory provision the action could not be brought against him; he represents only the personal property of the decedent. The real estate descends to the heir, and in the present case it is the heir who refuses to convey.” It was held in Newton v. Swazey, 8 N. H. 9, “A bill for specific performance may be maintained against the heirs of the vendor.” This was fully recognized in Traphagen v. Traphagen, 40 Barb. 537, where it was held that,
We do not think that the fact, in the present case, that the testamentary provision provided for in the contract between Mrs. Belt and Mrs. Jones embraced both realty and personalty rendered it necessary to make an administrator upon the estate of Mrs. Jones a party defendant to the action. Both the land and the railroad stock were in the possession of the sole heir at law, and the estate owed no debts. There being no debts of the estate to be paid and no distribution thereof to be made, there was no necessity whatever for an administration, unless one were necessary merely for the purposes of this suit. We fail to see how it is necessary to have an administrator appointed and then made a party defendant to this action merely because there was personalty as well as realty embraced in the contract. Under the facts alleged, the title to the personal propertj1, as well as that to the land, was in the heir at law. The ruling in Kent v. Davis, 89 Ga. 151, is to this effect. There an equitable petition was brought by the heirs at law of a decedent, who had died intestate, to set aside conveyances of both realty and personalty made by him, which were alleged to have been procured by the fraud and undue influence of the grantee, when the grantor was incapable of transacting business, and for an accounting by the defendant grantee for the personalty which he had thus received, the petition alleging that the estate of plaintiffs’ ancestor owed no debts and that there had been no administration
6. Paragraph 6 of the petition was demurred to upon the ground that it was not stated therein to whom the alleged direction was given by Mrs. Jones to turn the property in question over to Mrs. Belt, and because such direction, if given, would not authorize a recovery or justify the representative of Mrs. Jones’ estate in delivering the property to the plaintiff. The allegation that Mrs. Jones gave direction to turn over the property to the plaintiff is
7. There was no merit in the point, raised by several grounds of demurrer, that no copy of the will of Henry A.. Jones was attached to the petition, nor the substance of such will, the date, and names of the subscribing witnesses stated, nor any allegation as to whether there was any administration upon the estate. As we have already said, the right sought to be enforced by the plaintiff is based upon the alleged agreement between her and Mrs. Jones, and no recovery is sought by virtue of any right claimed under the alleged will of Henry A. Jones. The claims of the plaintiff under such alleged will were compromised and settled by the agreement with Mrs. Jones, and were merged therein.
The court erred in sustaining the demurrer and the judgment is thérefore Reversed.
