95 Ga. 655 | Ga. | 1895
Mrs. Edwards, as administratrix of W. C. Edwards, brought an equitable petition against Titus Richards, to set aside, a sale of land, cancel a deed, etc. The following is a condensed statement of the material portions of her petition : The land in question belonged to the estate of her intestate. Leave to sell the same was granted to her by the ordinary upon an application, notice of which
There were two amendments to the petition, which the court allowed. One alleged that out of the rents .and profits of the land, Richards had received more than sufficient to pay back to him the $300.00 he had paid for the land, with interest thereon ; and it was prayed that he account for these rents and profits; that they be applied, as far as necessary, to the repayment to him of the $300.00 and interest; and that the plaintiff recover the balance thereof. The other amendment above referred to alleged that Richards had borrowed money and .given a mortgage on this land to secure its repayment; that by reason of this mortgage, the title of petitioner
Still another amendment to the petition was offered, which the court rejected. It alleged, that although the petitioner’s attorney, John W. Ilixon, was present at the sale of the land and heard the false announcement made by Richards, he did not then,mor until recently, know or ascertain that the same was untrue; or, if-her .attorney did have such knowledge at the time of the sale, or before or • afterwards, by reason of some understanding between himself and Richards, he concealed the fact from her.
At the trial of the case, Mr. Ilixon appeared as one of the counsel for Richards. Defense to the petition was made both by demurrer and by answer.
Iu view of the above mentioned amendment to the petition, wherein a money judgment was prayed against Richards, with the privilege to him of discharging the same by a conveyance to the plaintiff' of the land unencumbered, there was no need whatever for making Bryant a party to the case, either on his own motion, or at the instance of Richards. That amendment distinctly
It is unnecessary, we think, to consume time or space for the purpose of proving that the petition set forth a cause of action. It certainly cannot be seriously contended that the plaintiff is chargeable with any laches. While she does not, it is true, allege the precise time when she discovered the fraud, or undertake to explain why she failed sooner to discover it, the fact that her suit was brought within seven years from the date of the sale negatives any suggestion that she is barred by the lapse of time. She certainly could not have discovered the fraud prior to the date of the sale, for it was not till then she alleges its perpetration; and even had she discovered it immediately after Richards secured his deed, from her and went into possession, she would, under the repeated rulings of this court, still be in time. It was not, therefore, essential to allege with exactness the precise date of her discovery, or to do more than negative knowledge of the fraud prior to the execution of her deed to Richards. Her allegation that she had knowledge of the fraud only a short time prior to bringing her action meets this requirement fully, as it also appears by her petition that the deed to Richards was made immediately after the sale, six years or more before her action was brought.
There is little or no merit in her allegation that the notice of the application for leave to sell was not published the full time required by law; for, as she acted upon the order granting leave to sell, she should not now be heard to question its validity. But as to the