Jones v. Gilpin, 127 Ga. 379

Jones v. Gilpin

127 Ga. 379 | Ga. | 1907

Cobb, P. J.

(After stating the facts.) The demurrer came onto be heard after the first term, and therefore the only question to be determined is whether the petition, as against the points made in the demurrer, set forth a cause of action which should be submitted to a jury in the event that the allegations are sustained by proof. The prayers for ancillary relief, in the way of an injunction and receiver, may therefore be eliminated from the discussion. The only question is whether the allegations are sufficient to authorize a decree of cancellation. It is contended that the plaintiff has a complete remedy at law, by an action of ejectment to recover the possession of the premises, and that upon the trial of such an action the deeds can be attacked upon the grounds set forth in the petition as effectually as they can be in a proceeding in equity. While there is no distinct prayer for the recovery of the possession, of the land, there is a prayer for the recovery of mesne profits, *382which would indicate that the defendants were in possession of the property, except the home in which the widow was living; there being an allegation that she was in possession of that portion of the property. The petition might be, therefore, well treated as an action for the recovery of the land; and if so, of course, there would be n« reason for dismissing this petition and requiring the plaintiff to file another in which the same result could be accomplished. In fact, since the “uniform procedure act” of 1887, a petition which sets forth a legal cause of action, though couched in terms appropriate to an equitable proceeding, in so far as the same does mot seek any extraordinary relief, will not be dismissed as a whole, upon the ground that the plaintiff has an adequate remedy by an action at law. Teasley v. Bradley, 110 Ga. 498 (4). If the petition'be construed as an action for the recovery of the land, with a prayer for equitable relief by a decree cancelling the deeds, of course the demurrer was properly overruled. But suppose the petition should be construed as merely an application for equitable Relief by a decree for cancellation. The allegations are sufficient to authorize a decree that the deeds were void on the ground that the grantor had no capacity to contract or to make a gift, at the time they were made, even if they were not sufficient to authorize a decree upon the ground that they were forgeries. The administrator is not only entitled to recover the land for the purpose of administration of the estate of the intestate, but he is also entitled to any relief that the owner of the land would be entitled to in ■order to free the property from a cloud that might hover over the title. That these deeds, if void for the reason that the grantor had mo capacity to make them, are clouds upon the title of the estate that he represents, admits of little question. See Watkins v. Nugen, 118 Ga. 375(8), 380, and cit.

The scheme originated, according to the averments, with the ■children of the first marriage. To accomplish this scheme it was meeessary for a stranger and outsider to be used as a party. This party was found in the defendant Jones; and, under the allegations, h.e had notice of, the fraudulent scheme that was to be perpetrated on the widow and her infant child, and became a purchaser of the property with full notice of the fraud of his vendors. In one place it is alleged that he had notice of the fraud, and in another place it is alleged that he had ‘notice of such circumstances as would put *383a prudent person upon inquiry. These allegations are sufficient to call for an answer from him as to whether he was a party to the fraudulent scheme, or, in fact, an innocent purchaser without notice.

While, as a general rule, the expenses of litigation are not allowed to be recovered, still, if the defendants have acted in bad faith, the jury is authorized to allow them. Civil Code, § 3796. If the allegations in the petition are true, the defendants, and all of them, have certainly acted in bad faith. The case is one peculiarly appropriate for the assessment of the expenses of litigation, if the plaintiff should establish the truth of the allegations.

.Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.