1. If an enfeebled mother of advanced years, in order to procure a loan from a bank, was induced by three of her four adult sons to convey her land to one of the sons (J. M.) upon oral agreement that he would procure the loan individually, conveying the land as security for the debt which she should assume, whereupon the land should be reconveyed to the mother, subject to the security deed, the transaction would ordinarily be within the power of the parties. The effect of the oral agreement by the son to reconvey would not be to engraft an express trust on the unambiguous deed from mother to son.
2. If possession of the land was not yielded by mother to son under her deed of conveyance, but she continued in possession, and while so continuing the son J. M., without notice to the mother, conveyed the land to her son R. V., a party to and having notice of the oral agreement for conveyance by the mother to procure the loan, the son R. V. would, in virtue of such conveyance to him, take subject to the equities of the mother.
(a) Where under like circumstances the son R. V. Day conveyed the land to the son L. G., the latter in virtue of the conveyance to him would take subject to the equities of the mother.
(b) Also where the son L. G. conveyed the land to his son W. E., after death of the mother and after suit in equity, instituted by her administrator, the grantee W. E., having notice of the aforementioned equities of the mother, would in virtue of his deed take subject to the equities of the estate of the decedent.
3. Where, in the circumstances stated above, the son J. M. failed to reconvey the land to the mother, as required by the oral agreement, but on the contrary conveyed the land to the son R. V., without notice to the mother, such conveyance would be a fraud as against the mother, and would not defeat her equity in the land.
4. In circumstances stated, the fourth son, H. A., not a party to the fraud mentioned above, and the receiver appointed by the court with authority to sue for assets of the estate, having been made parties plaintiff by amendment to the suit of the administrator, the petition as amended alleged a cause of action, based on implied trust, for cancellation of
the deeds executed successively by the sons, other than the security deed, and contained prayers appropriate to the grant of such relief. Jenkins v. Lane, 154 Ga. 454 (3) (115 S.E. 126); Chandler v. Georgia Chemical Works, 182 Ga. 419
(185 S.E. 767). Whether or not the petition stated a cause of action for specific performance of the oral agreement, and whether or not the prayer for that relief was appropriate (Waters v. Waters, 124 Ga. 349, 52 S.E. 425; Shaprio
v. Steinberg, 175 Ga. 869, 166 S.E. 767; Guffin v. Kelly, 191 Ga. 880, 887, 14 S.E.2d 50), yet, since the petition stated a cause of action for part of the relief sought, it was not subject to general demurrer. Blaylock v. Hackel, 164 Ga. 257 (5) (138 S.E. 333); Malone v. Robinson, 77 Ga. 719 (2 a); Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (3) (124 S.E. 813).
5. The petition as amended sought, among other things, cancellation of the successive deeds from J. M. Day to R. V. Day, from R. V. Day to L. G. Day, and from L. G. Day to W. E. Day. Two amendments to the petition showed that L. G. Day had died pending the action, and that no administrator had been appointed. W. E. Day filed (1) objections to one of these amendments. (2) general and special demurrers to the other amendment, (3) general and special demurrers to the petition as finally amended, and (4) a plea of nonjoinder; each presenting the contention, among others, that the suit could not proceed further, nor could the amendments be properly allowed, until an administrator of the estate of L. G. Day was appointed and made a party defendant. The court overruled all of these pleadings. W. E. Day is the sole plaintiff in error. In the bill of exceptions are four assignments of error complaining of these rulings. Held:
(a) Under the allegations of the petition as amended, relating to cancellation of the deed from L. G. Day to his son, W. E. Day, which contained a general warranty of title, it was essential to such relief of cancellation that the estate of L. G. Day, who died pending the suit, should be represented in the litigation, and to that end that an administrator should be appointed and made a party defendant, before further proceedings after his death, the question of nonjoinder having been duly raised. Accordingly, each of the rulings assigned as error was erroneous as contended, so far as related to this question. Code, §§ 3-401, 3-402; Taylor v. Colley, 138 Ga. 41 (74 S.E. 694); Biggs v. Silvey, 140 Ga. 762
(79 S.E. 857); Spicer v. Macklin, 164 Ga. 135, 137
(137 S.E. 828); Terry v. Ellis, 189 Ga. 698 (6, 7) (7 S.E.2d 282).
(b) There was no merit in any of the assignments of error, so far as related to other questions.
(c) On application of the foregoing rulings, the judgment is affirmed on the overruling of all grounds of objection and demurrer except as to the question of nonjoinder of the estate of L. G. Day, and is reversed on the rulings relating to that question, including the order overruling or disallowing the plea of nonjoinder.
Judgment affirmed in part and reversed in part. All the Justices concur.
No. 13601. JUNE 17, 1941. REHEARING DENIED JULY 9, 1941.
In 1924 Mrs. Eliza Day, being of advanced age, was mother of several sons and daughters, among whom were four adult sons, J. M. Day, H. A. Day, L. G. Day, and R. V. Day. L. G. Day had a son, W. E. Day. Mrs. Day owned certain farm lands on the basis of which she desired to procure a loan from a bank. Because of her age she could not procure the loan. J. M., L. G., and R. V. Day, formed a plan whereby Mrs. Day should convey the land to J. M. Day, who would procure the loan in his own name, conveying the land as security and immediately thereafter reconvey the land to Mrs. Day, subject to the security deed, who should assume the loan. In pursuance of this plan Mrs. Day executed the deed to J. M. Day on December 23, 1924. J. M. Day procured the loan, conveying the land by security deed, and the loan was assumed by Mrs. Day and she continued until her death to hold possession, paid taxes and loan installments, and placed valuable improvements on the land. J. M. Day did not make a deed of reconveyance to Mrs. Day, but on December 24, 1931, without her knowledge or consent he conveyed the land to R. V. Day on a purported consideration of fifteen thousand dollars, the deed reciting assumption of "all indebtedness" against the land. On September 16, 1932, R. V. Day under similar circumstances conveyed the land to L. G. Day on a purported consideration of one hundred dollars, which was never paid. That deed also recited assumption by the grantee of the debt secured by the security deed. Mrs. Day died intestate on February 2, 1938. On March 17, 1938, E. H. Brown as administrator of her estate, on account of the complicated condition of the estate and to avoid a multiplicity of actions, instituted an action against the heirs at law and descendants of Mrs. Day, including all those specifically named above, seeking to have the estate administered in equity through instrumentality of a receiver; and to enjoin L. G. Day from disposing of the land and certain live stock alleged to be property of the estate. The petition as amended alleged that J. M. Day and R. V. Day were non-residents of Georgia, and prayed for service by publication upon them and other non-resident defendants. An order for such service was granted; but it does not appear that any order was ever passed, under the Code, § 81-208, determining that service had been perfected, nor
does it otherwise appear that service by publication was made as directed. L. G. Day interposed a general demurrer. H. A. Day was allowed to intervene as a plaintiff. His intervention was several times amended, substantially adopting all the allegations and prayers of the petition, and setting forth additional allegations and prayers including a prayer for specific performance of the agreement, and for reconveyance of the land subject to the loan deed, and that title to the land be decreed to be in the estate of Mrs. Day. At interlocutory hearing a receiver was appointed and given direction to take possession of all the properties mentioned, and to administer them under direction of the court, subject to certain qualification authorizing L. G. Day to give bond, etc., not necessary to be mentioned. On his application because of illness the receiver was discharged. C. S. Parham appointed as successor receiver, in pursuance of authority conferred by the court to sue, presented his petition in the nature of an amendment to the petition filed by E. H. Brown administrator. He adopted all the allegations and prayers of Brown, and the allegations and prayers of the intervention of H. A. Day and the amendments thereto, and added other allegations and prayers. Among the amendments by H. A. Day was one designated "second intervention," allowed and filed in office July 27, 1940. In that amendment were, among others, allegations in substance as follows: L. G. Day died on December 23, 1939, while the action was pending. Shortly before death and while he was non compos mentis W. E. Day and J. M. Day fraudulently caused L. G. Day to execute a deed purporting to convey to W. E. Day the land and live stock in question, in violation of an injunctive order of court issued against L. G. Day. It was prayed that the deed be decreed void and canceled. W. E. Day demurred to this amendment, on the following grounds: (a) It failed to set forth a cause of action. (b) The petition did not allege a cause of action, and the intervenor must "take the case as he finds it." (c) It showed that since institution of the suit L. G. Day died, and failed to show that a legal representative has been appointed and made a party to the case. (d) It showed that R. V. Day was not made a party, and that none of the heirs of Mrs. Day except L. G. Day were served. (e) Copies of the deeds specified were not attached. (f) No fraud was shown in procurement of the deed from Mrs. Day and those that follow. (g) The action appears
to be barred by the statute of limitations. The judge overruled the demurrer, and the demurrant excepted. To allowance of the supplemental petition of Parham, receiver, W. E. Day interposed objections: (a, b) It seeks to set up a new cause of action for specific performance, unsupported by allegations of the petition. (c) It shows that L. G. Day is deceased, and a legal representative has not been made a party. (d) J. M. Day has not been served, and the grantee in the security deed has not been made a party. (e) R. V. Day has not been served, and is not a party to the suit. (f) W. E. Day (objector) has not been served, and is not a party. (g) Amendment seeks to set up fraud in procurement of deed from Mrs. Day when there was no such charge in the original petition. (h) Amendment seeks specific performance of oral agreement, which if allowed would vary terms of unambiguous unconditional deed. (i) Amendment seeks to require reconveyance to Mrs. Day, while title is outstanding in security deed, and the deed to R. V. Day and L. G. Day remains uncanceled. (j) Amendment seeks to incorporate previous intervention of H. A. Day, and is unsupported by allegations of the original petition. The objections were overruled, and the amendment allowed. W. E. Day excepted. A demurrer by W. E. Day stating similar grounds of attack upon the amendments by H. A. Day and Parham, was overruled, and the demurrant excepted. W. E. Day finally interposed a plea of nonjoinder, on the ground that after commencement of the action the principal defendant L. G. Day had died and his death had been suggested of record, but no representative of his estate had been made a party, though such representative was a necessary party. The court overruled the plea, and W. E. Day excepted.