Brown v. Latham

92 Ga. 280 | Ga. | 1893

Bleckley, Chief Justice.

The petition in this case was filed in July, 1891. Consequently it is governed by the law of pleading and procedure as shaped by legislation up to that time. If the petition is good either as a legal or as an equitable action, it should be upheld. The plaintiff and defendant are sister and brother, the daughter and son of a father who died intestate in 1886, leaving these parties and his widow as his only heirs at law. According to the allegations of the petition, the defendant has more than his due share of the assets of the father’s estate, consisting of certain lands. It does not appear that any administration upon the father’s estate has been granted, or that, there is any impediment to an accounting and settlement between these parties as equitable tenants in common touching these lands, and as contracting parties in respect to the same. The points insisted upon as impediments are: first, that the petition shows on its face that the father having in his lifetime conveyed the land to the defendant for the purpose of defrauding a creditor of the father, a court will not aid the sister of the defendant, any more than it would the father, to recover the lands or any portion of them from the defendant; consequently, that the lands are not to be treated as a part of the father’s estate; secondly, that this being so, there was no consideration for the alleged contract by the defendant with the plaintiff to account to her for the lands or any part of their value; third, that the petition is multifarious; and fourth, that it is barred by the statute of limitations. Other grounds are mentioned in the demurrer, but they are of no consequence.

Treating the action as getting its standing in court not alone from the respective rights of the parties as heirs of their father, but partly from the contract between them which is alleged, it does not affirmatively appear that as much as four years had expired from the time this contract was to be performed .until the action was brought. The time appointed for performance was when the claim ease was settled, and it does appear inferentially that that occurred sometime in the year 1887, or sooner, for in that year a payment was made upon the contract. The day and month of this payment were not stated, and whether it was earlier or later than July cannot be ascertained from anything disclosed by the declaration.' Hence it does not affirmatively appear that the action was barred.

"With respect to turpitude in the agreement between father and son,it maybe said that if a fraud was intended the son concocted it, and on account of his influence over the father and the age and weakness of the latter there is no certainty that the father, of his own free will, participated in the fraudulent intention or was in pari delicto with the son. The petition certainly endeavors to throw all the blame of that transaction upon the son, and nothing is disclosed inconsistent with the theory that the father was led into it by the undue exertion of the son’s influence over him.

Touching the contract which the parties made after' the father’s death, there was ample m'oral consideration to uphold it if the petition be true, for even if the son Was in a position to protect himself against reconveying to the father, he could waive that protection, and, upon his moral obligation to share the lands with his sister in proportion to her interest as a coheir with himself, could contract with her to retain both her interest and his own in some of the lands, convey to her the balance, and pay her a money compensation besides. It is true another coheir, the widow, might have reason to complain at this, and she might be a proper if not a necessary party to the present action, but no objection on account of her not being a party was made. We think the moral duty of the defendant to account to his sister for her interest in the land, although it may not have been a legal interest or one that could be enforced, would be a sufficient consideration to uphold the contract between them.

The point made in the demurrer that the father had not complained of the conveyance in his lifetime has no force, because the time for a reconveyance agreed upon had not arrived when he died. Until that time arrived the son was to retain the title to the property, and before it arrived he contracted with his sister to convey some of the property to her and retain the balance himself. To refer again to the widow, it may be that all this was satisfactory to her. She may have acquiesced in it without complaining, and if she did, no one else has a right to complain.

The objection that the petition is multifarious is not sustainable, because under our present system of pleading, contract rights, though they may relate to separate and distinct subject-matters, may all be enforced in one and the same action. Here the object is to settle up the claims of these parties and adjust their rights in respect to their father’s estate m this land as a whole; and the contract between’them covers the whole. It may be that a decree or judgment should be rendered for the plaintiff only on terms, such as that she execute a re: linquishment to the defendant as to all the lands which he by the contract was entitled to retain. If she gets a conveyance from him of some of the lots, it may be that it would be equitable under the spirit of the contract for her to relinquish or release to him all her claim to the other lots. On the points presented in the demurrer we think there was no error in overruling it.

Judgment affirmed.