37 S.E.2d 353 | Ga. | 1946
1. The Code, § 85-604, provides as follows: "The tenant for life shall be entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. For the want of such care and the wilful commission of such acts, he shall forfeit his interest to the remainderman, if he shall elect to claim immediate possession."
2. As will be seen by the statement of facts, all of the land and personalty was devised to the widow for life with the special provision for the use of the corpus for her support, with remainder over to the testator's brothers and sisters, except that it was provided that should she remarry, one specified tract of land would immediately vest in fee simple in the widow, and that the remainder of the realty upon the happening of such contingency would vest in the remaindermen. The defendant demurred specially to the petition for forfeiture as pertaining to this specified tract, in which the remaindermen thus held a vested remainder subject to be divested in favor of the widow upon her remarriage. While it is true that remaindermen, whether the remainder is vested or contingent, may enjoin for waste (Kollock v. Webb,
3. As to the demurrer attacking the petition on the ground that the action was barred, it is the rule that where waste has been committed, the person entitled to the remainder estate has the right to elect either to *414
sue in tort for damages, in which case the action must be brought within four years after the accrual of the cause of action (Lazenby v. Ware,
(a) As to the demurrer to the petition, setting up laches, the plaintiffs by their petition were not seeking to establish any equitable relief; but the action being at law for the recovery of land under the statutory rules governing forfeitures, the case was not one for the interposition of equitable relief by the bar of laches. Fox v. Lofton,
4. While it is true that the cutting of timber and clearing of land do not always constitute waste, but such a question is generally for the jury (Woodward v. Gates,
(a) While it is the general rule that a petition need not by anticipation negative possible defenses on the part of the defendant (James v. Maddox,
5. The allegations of the petition as amended, setting up the alleged acts of omission as constituting waste, which have been set forth in the statement of facts, could not, just as was said by all the Justices in the similar case of Roby v. Newton,
6. As to the cross-bill, the partition prayed is held to be premature, since the life tenant is in possession of the entire estate for the remainder of her life, and the remaindermen are not entitled to either actual or constructive possession pending determination of the life estate. This does not contravene the rule that land may be partitioned among the *416
life tenants for the purpose of allowing each to have, use, and enjoy his or her part during the term of such life interest (Watkins v. Gilmore,
Judgment reversed on both the main and cross-bill of exceptions. All the Justices concur.
All of the remaindermen under the will joined in a petition for forfeiture, against the life tenant, setting up, as originally alleged, acts of commission as constituting waste, in that the life tenant had sold and thus had removed about two million board *417 feet of timber from the premises in which they had a remainder estate. By amendment, and in response to demurrer, the petitioners undertook to show how much timber had been removed from each tract, and set forth that from one tract of the plantation a certain amount of timber had been removed in 1935 and 1939, a certain amount from another tract in 1935 and 1943, from another tract in 1935, 1939, and 1940, a certain amount from another tract in 1936, from another tract a certain amount in 1934, 1935, and 1938, and a certain amount from another tract in 1935 and 1939; but the petition failed to indicate in every instance but one what portion of the amount from each tract had been removed in each particular year.
By further amendment, and in response to demurrer, the petitioners set forth acts of omission which were alleged to constitute waste, specifying the waste complained of in each particular tract. As illustrative of these allegations with regard to waste in the respective tracts, we select and quote allegations as to one of the tracts, which we think is the strongest of all the averments made as to any, as follows: That the defendant, "through neglect and failure to make any repairs, has permitted the roof of the corn crib to practically rot away . . the roof of one of the barns to rot off . . that the porch on the tenant house has rotted down through neglect and failure to repair . ., that there was at the time of the death of said [testator] thirty acres of land in cultivation on said tract capable of being successfully cultivated, and the defendant, through neglect, has permitted the same to lay out and the said tracts are growing up in pine trees and cannot longer be cultivated, and the said thirty acres of land have been destroyed for the purpose of cultivation."
The defendant demurred specially to the petition as amended as to one of the tracts, in that under the quoted provisions of the will the plaintiffs held a remainder interest subject to be divested upon the remarriage of the widow. The only other special ground which is now insisted upon is that, "under the allegations as to the cutting of timber from the various tracts of land, it affirmatively appears that any right of action which plaintiffs might have had by reason of said allegations are barred by the statute of limitations, and/or laches on the part of the plaintiffs, and they are not entitled to the relief prayed for, for the reason that any *418 rights are barred as aforesaid." The defendant demurred generally to the petition as failing to set forth a cause of action. By her prayers and answer she denied the allegations of the petition, and set forth as to the cutting of timber that the proceeds from its sale, in each instance not amounting to more than $300, were used in making permanent improvements on the property from which it had been taken.
By way of cross-action, the defendant invoked the equitable power of the court to pray for partition of the three tracts of land in which the plaintiffs owned a fractional interest in remainder, and in which the defendant's grantee owned the other fractional undivided interest in remainder. The grantee, Annie C. Bowdoin, by intervention adopted the defendant's answer and joined in the prayer for partition. The court overruled the defendant's general and special demurrers to the petition, and, over the objections of the plaintiffs, allowed the grantee to intervene. In the main bill, the defendants excepted to the overruling of their demurrers to the petition; and by cross-bill, the plaintiffs excepted to the over ruling of their demurrer to the answer, praying for a partition, and to the order allowing Annie C. Bowdoin to intervene as to such prayer.