Opinion
17884.
ARGUED MAY 12, 1952.
DECIDED JUNE 9, 1952.
Equitable petition. Before Judge Forehand. Irwin Superior Court. March 21, 1952.
Philip Newbern and McDonald McDonald, for plaintiff in error.
R. D. Smith and W. R. Mixon, contra.
The present action involving an agreement whereby a mother conveyed land to her son to enable him to get a start in business, and he at the same time reconveyed it to her, but the deed of reconveyance, which was not to be recorded for ten years, was lost, such action to establish the lost deed and recover the land, brought within less than six years after possession was to be returned to the mother, was not barred by the statute of limitations or laches.
No. 17884. ARGUED MAY 12, 1952 — DECIDED JUNE 9, 1952.
On February 11, 1950, Mrs. Fannie Fletcher filed in Irwin Superior Court, against E. D. Fletcher, a petition which alleged substantially the following: Prior to August 4, 1929, on which date petitioner's husband died, she owned land lot 14 in the Third Land District of Irwin County, consisting of 490 acres, of which between 150 and 200 were in cultivation. Located thereon was a residence, in which petitioner continued to reside with her nine children, one of whom was the defendant, and five tenant houses, with necessary outbuildings. The defendant represented to petitioner that, if she would convey the land to him and would permit him to use it for a period of ten years, he would be enabled during that time to get a start as a business man; and that he would at the same time execute and deliver to her a deed reconveying the property. As a part of the inducement the defendant stated that during the ten years he would pay off an indebtedness of approximately $6300 principal, which petitioner had contracted with the Federal Land Bank, and the balance of which was secured by a deed to secure debt to the above-mentioned lot, and that petitioner and her children would be permitted to remain upon the property and receive a support therefrom. Acting on the defendant's suggestion, petitioner on August 30, 1934, executed and delivered to defendant a warranty deed to the property in which he assumed the above-mentioned indebtedness. At the same time the defendant duly executed and delivered to petitioner a deed reconveying the property to her, free from any lien or encumbrance, with the understanding that it would not be recorded until the expiration of ten years from its date. Defendant assumed the management of the premises, although petitioner and her family did not continue to reside upon the land longer than 1936, and after that time received from the defendant no financial assistance of any consequence. Although the defendant did not have the right so to do, so far as petitioner was concerned, he borrowed from the Federal Land Bank $6500, the proceeds of which were used to discharge the liens held by it. This new indebtedness was secured by a deed conveying lot 14, and other described property, and is today outstanding for not less than $5900. The deed that the defendant executed to petitioner was not recorded, and since its delivery to her has been misplaced or lost and after diligent search can not be found. At the expiration of ten years from the date of the execution of the deed from petitioner to defendant, she stated to him that such deed had been misplaced and asked him to reconvey the land to her, which demand was refused, and defendant has since remained in possession of the land, collecting the rents, issues, and profits therefrom. The defendant is insolvent and petitioner is without any adequate and complete remedy at law. The petitioner prayed: that process issue; that the lost deed, a copy of which was attached to the petition, be established; that title to lot 14 be decreed to be in petitioner, free from any lien or claim of the defendant; that petitioner have judgment for mesne profits; that a receiver be appointed; that defendant be enjoined from transferring any of the above-described property, or creating any lien against the same, pending final judgment; that the tracts of land conveyed by the defendant as security to the Federal Land Bank be sold under a decree of court and the purchase price therefrom be applied to the indebtedness due the Federal Land Bank; and that petitioner have general equitable relief.
A demurrer on general and special grounds was interposed by the defendant to the petition. The trial court overruled the general grounds of demurrer. Certain grounds of the special demurrer were overruled and other special grounds were sustained. The defendant excepted.
This is a controversy between the original parties to the alleged contract, and does not involve the rights of innocent third parties. The primary object of the suit was to recover the land. A controlling question is whether the action was barred by the statute of limitations or by laches.
"If an original deed is lost, a copy may be established by the superior court of the county where the land lies." Code, § 29-113. The defendant did not demur on the ground that the petition failed to allege the date on which the deed was lost, and no ruling will be made in reference thereto.
There is no absolute rule as to what constitutes laches ( Equitable Building Loan Assn. v. Brady, 171 Ga. 576, 585, 156 S.E. 222), and in suits to recover land in this State title by prescription has been substituted for the statute of limitations. Fowler v. Latham, 206 Ga. 245, 251 ( 56 S.E.2d 272).
Under a reasonable construction, the allegations that the petitioner and her children were to be permitted to remain upon the property and receive a support therefrom, though she and her family did not continue to reside on the land longer than 1936, are not, as contended by the defendant, averments that the defendant forced them to leave or that he otherwise breached his contract. In the absence of an allegation that the defendant breached his contract in 1936, the petitioner could not at that time have maintained an action for recovery of the land. If the petitioner had any rights with regard to these matters, they could have been waived.
The allegation that the defendant renewed the loan with the Federal Land Bank was the averment of a fact that would have been consistent with eventual payment of the indebtedness, and the date when the renewal was made is not material to any issue in the case.
Under the allegations of the petition, the defendant could have complied with the alleged contract by paying off the indebtedness at any time during the 10-year period, and the petitioner was not entitled to recover possession until August 30, 1944. The suit was filed on February 11, 1950, within less than six years after the alleged cause of action arose.
Taking the allegations of the petition to be true, as must be done in considering the general demurrer, sufficient facts were alleged to set forth a cause of action for recovery of the land, and the trial court did not err in overruling the defendant's general demurrer.
Judgment affirmed. All the Justices concur.