107 Ga. 807 | Ga. | 1899
The plaintiff in error filed an equitable petition in Marion superior court, making substantially the following case: Thomas W. Harvey became guardian of the person and property of the petitioner in 1872, and as such guardian took possession of all her property except an undivided one-seventh interest in 800 acres of land situated in Talbot county, Georgia. He well knew that petitioner owned this interest in that land, and, instead of .taking possession thereof for her, he colluded with one Brown, who was a brother in law of said guardian, and allowed Brown to take possession of said land and collect and receive the rents thereof for his own use. Brown had died intestate and insolvent. There was no administration upon his estate. The petition further alleged that petitioner was young, and that she confided in her guardian and relied upon his faithfully performing his duties as such; yet he concealed and suppressed from her his knowledge of her interest in the land mentioned. She reached her majority in 1880 and had a settlement with her guardian, who did not account to her for the land or the rents and profits thereof, and did not inform her that she owned the land or any interest therein. The first time she received any information about her interest in the land was in 1891. She had then lost the land and her profits therefrom, and she brought her action the following year against Thomas W. Harvey for the purpose of recovering the value of the land with the profits. Harvey died pending the suit, and his executor, Evan T. Mathis, was made a party defendant. This petition was demurred to on the following grounds: (1) Because no cause of action was set forth. , (2) Because plaintiff had a full remedy at law. (8) Because under the allegations in the petition the title to the realty in controversy was in plaintiff, and defendant should not be held liable for the value thereof. To the judgment of the court sustaining this demurrer the plaintiff excepts.
It is further contended by counsel for defendant in error, that the petition shows upon its face that it is barred by the statute of limitations, the suit having been brought more than ten years after the final settlement with the guardian. This case is evidently founded upon the principle embodied in section -3785 of the Civil Code, which declares: “If the defendant, or
Judgment reversed.