Galloway v. Vestal

135 Ga. 707 | Ga. | 1911

Beck, J.

(After stating the facts.)

1, 2. The rulings in the first two headnotes are sufficient without discussion.

3. The petition in this ease is inartificial, and contains much that is unnecessary in a statement of the case and is purely surplusage; but there was no special demurrer pointing out particular defects in the plaintiffs’ statement of their case. The defendant relied entirely upon his contention that no cause of action was stated; and the court below, agreeing with the defendant, dismissed the petition. The court must have reached his conclusion upon the' ground that the return of the appraisers setting apart a tract of 80 acres of land described in the petition was so vague and indefinite as to be insufficient to vest the title to the same in the widow and minor children, as contemplated in the law relating to the setting apart of a year’s support for a widow and her children. The court’s judgment could not have been based upon the ground that if the land had been properly set apart as a year’s support to Mrs. Galloway and her children, the defendant could, by the representations which were false and fraudulent in every particular and made to a weak-minded woman who reposed confidence in him, obtain a deed from her which would be valid and capable of withstanding the attacks which were made upon it in the petition which we have before us for consideration.

We apprehend that the argument which is advanced in the brief of counsel for the defendant in error, filed in this court, to the effect that the description in the return of the appraisers, because of vagueness and uncertainty in the description of the land, was insufficient to vest the title thereto in the widow and children, and that therefore they could not maintain this petition to set aside a conveyance executed by the widow- and which had been obtained by fraud, must have appealed to the court below as being sound. This argument was supported by the citation of the case of Lee v. English, 107 Ga. 152 (33 S. E. 39). In the case just referred to the contest was between the widow and creditors of the deceased husband, and the widow herself advanced the contention that the description of land allowed by the verdict of the jury, trying objections to the return of appraisers appointed to set apart and assign the year’s support, was so vagu'e, uncertain, and unintelligible as to be unenforceable. But. in the present ease, a party who obtained a. conveyance of the land alleged to be the same as that which was embraced in the return of the appraisers, when his conveyance is attacked on the ground 'of fraud, raises the point that the description was fatally defective. We do not think that he is in position to take advantage of the defect pointed out in the description. By virtue of the act of the appraisers the widow and children are in possession of the land. No creditor of the deceased husband is attacking the title of the widow and children. Their possession and title are menaced alone by the fact that a deed obtained by fraud is outstanding in the hands of this defendant. And if they establish by proof what they have alleged, they are entitled to have the menace removed by the cancellation of the fraudulently procured conveyance.

Certain special prayers of the petition are criticised in the brief of counsel for the defendant in error. This should have been done by special demurrer, if these prayers have the particular infirmity now attributed to them. As against a motion to dismiss, in the nature of a general demurrer, the petition was good and the prayer was. sufficient. Judgment reversed.

All the Justices concur.