5 S.E.2d 773 | Ga. | 1939
The allegations of the petition in a suit to recover land showing title in the plaintiff superior to the claim of title by the defendant, a cause of action was stated, and the general demurrer was properly overruled.
"Perkins, after 1928, affirmed by actions and words that Agnes was his wife, and they lived together as lawful husband and wife and cohabited with each other. Prior to 1931, Arlena . . was working for Perkins, and at the time was his mistress. About 1931, . . Perkins purchased the property known as 81 Griffin Street, and set up Arlena . . as his mistress to occupy and take care of such home. At or about the time Arlena . . was put in possession . . Perkins . . orally gave her the property. . . This gift was on consideration that she live with him as his mistress, take care of the house for him, cook meals for him, and look after such of his clothes as he might have at the house. After Arlena . . took possession . . and while she was carrying out her part of the contract, both legal and illegal, between her and . . Perkins, she made some improvements on and repairs to the property at a cost totaling about $40. After 1931, and before his death, and to different disinterested witnesses, . . Perkins stated that 81 Griffin Street belonged to Arlena. . ." The auditor also reported the following findings of law: "Agnes . . is the sole heir of . . Perkins, and entitled to inherit whatever estate he owned at the date of his death. The gift to Arlena, . . made by . . Perkins about 1931, was based on an illegal and immoral consideration; and as Arlena . . is a party to that illegality and immorality, which affirmatively appears from her testimony, equity will not grant her any relief, and she is not entitled to the equitable relief sought by her intervention herein. Cf. Garrison v. Burns,
1. The doctrine pronounced in Beard v. White,
2. The allegations are to the effect that the plaintiff and the defendant claim title from a common propositus, the former having the better title. The allegations of such character stated a cause of action, and the judge did not err in overruling a general demurrer to the petition.
Judgment affirmed. All the Justices concur.