184 Ga. 652 | Ga. | 1937
Bessie Harden filed her petition against Mattie Lou Wilborn and J. W. Weaver, in which she alleged as .follows: She is the true owner and in possession of a certain described house and lot in the City of Atlanta. In 1930 this property was owned by and in possession of Susan Echols, who was about seventy-five years old, an invalid and unable to care for and support herself. Susan Echols agreed with the plaintiff, who was her cousin, that she would give to the plaintiff the property referred to, provided the plaintiff and her family would care for and support Susan Echols for the • remainder of her life. The plaintiff, pursuant.to this agreement, together with her husband, immediately went into possession of this property during the latter part of 1930, and the plaintiff has fully performed the agreement in that she and her husband have cared for and supported Susan Echols during her lifetime, and also have repaired and improved said premises, making valuable additions and improvements thereto1, and have paid the taxes thereon since 1931. On August 24, 1932, Susan Echols, “in order to more effectually execute said agreement on her part,” made a will in which she bequeathed said premises to the plaintiff and appointed her sole executrix, relieving her of the necessity of making bond, etc. The will provided: “I hereby give and bequeath to my cousin, Bessie Harden, who has supported, cared for, and in many other respects assisted me, all of my property, including realty, . . and especially” said house and lot. Susan Echols was old, feeble, confined to her bed, and being a complete invalid because of such age and weakened physical condition she suffered great mental weakness. On February 12, 1931, the defendant, Mattie Lou Wilborn, obtained from Susan Echols what purports to be a deed conveying the above-described property, which said deed provides that “the grantor herein retains unto herself a life-estate in above property, with the understanding that a fee-simple title is to vest in grantee herein upon the death of” Susan Echols. This deed
On April 19, 1936, Susan Echols died. During her lifetime she frequently stated that Mattie Lou Wilborn tried to get her property and she did not want her to have “anything that she had.” Mattie Lou Wilborn has demanded of plaintiff and her family that they vacate the property, and has threatened to institute dispossessory proceedings against plaintiff unless she yields possession to her. On October 8, 1931, Mattie Lou Wilborn attempted to convey this property to J. W. Weaver by warranty deed which has never been recorded, which deed is a part of the scheme to obtain said property without any consideration. On May 20, 1936, Mattie Lou Wilborn attempted to convey said property to Weaver by a warranty deed expressing $50 and other good and valuable considerations, which deed is relied upon by Weaver to support his claim to the property; and said deed is a part of the fraudulent scheme of the defendants to obtain said premises without any consideration therefor. The plaintiff alleges that all said deeds constitute a cloud on her title, and subject her to threats of dispossessory proceedings to her “vexation and injury.” Weaver, on May 26, 1936, caused dispossessory proceedings to issue in the municipal court of Atlanta against the plaintiff and her husband. She has no adequate remedy at law; and unless equity intervenes in her behalf and enjoins the defendants from evicting her and her family from said house and lot, she will suffer irreparable injury and damage. The will of Susan Echols is attached -to the petition as an exhibit. It provides that the testatrix revokes and annuls “all wills heretofore made by me, and especially do I revoke, annul, and declare to be of no force and effect whatsoever” a certain testamentary paper which in certain respects resembles a deed, but which is nevertheless testamentary
The defendants filed separate demurrers to the petition, on the ground that it shows on its face that the plaintiff has no title to said premises and is “only claiming or relying on title under a purported will which shows that it was executed on August 2i, 1932, . . subsequent to the testatrix having executed a deed to the property, . . said testatrix in said will attempting to revoke and annul said deed, which under the law can not be done,” and that, plaintiff is not such a party as to attack the validity of this defendant’s title to said property. The judge sustained the demurrers and dismissed the petition, on the ground that “it appears that the plaintiff is claiming under a will executed b3r a- deceased person, and that some years before her death the deceased conveyed the property and had no' title in her name at the time of her death, and that plaintiff is not entitled to prosecute this case to set aside the deed executed by the testatrix.” To this judgment the plaintiff excepted.
The petition was not subject to dismissal on general demurrer. If any part of a petition sets up a cause of action, it is error to dismiss the entire action on a general demurrer. The plaintiff was not claiming title to the premises under the will executed by Susan Echols, which property before her death she had conveyed to Mattie Lou Wilborn, and therefore did not have title to the same at the time of her death. The making of the will was alleged as merely illustrative of the actual facts of this case. It appears that the plaintiff and Susan Echols, an aged and infirm
Applying the principles of the code sections and the rulings in
