Opinion
16953.
FEBRUARY 13, 1950. REHEARING DENIED MARCH 15, 1950.
Cancellation. Before Judge Whitman. Fulton Superior Court. November 2, 1949.
Dotson Dotson and Wheeler, Robinson Thurmond, for plaintiffs.
Russell M. Striplin and Crenshaw, Hansell, Ware Brandon, for defendants.
The petition in this case, showing affirmatively that the petitioners were guilty of laches, was properly dismissed on general demurrer.
No. 16953. FEBRUARY 13, 1950. REHEARING DENIED MARCH 15, 1950.
W. H. Cannon and H. R. Cannon filed suit against Fulton National Bank of Atlanta, Fred W. Collier, and Harvey H. Hunt, as executors of the estate of Cecil R. Cannon, in which it was alleged in substance that H. R. Cannon died August 6, 1936, leaving a will naming his widow, Mrs. Martha E. Cannon, and Cecil R. Cannon as executors; that the executors named duly qualified as such; that H. R. Cannon left surviving nine children; and that his will devised a life estate to his wife in all his property, with remainder over to his children. Martha E. Cannon died September 9, 1945. Cecil R. Cannon died on March 24, 1948.
Cecil R. Cannon, on January 4, 1937, filed with the court of ordinary a petition, alleging that he had learned that a note dated March 7, 1925, for $121,540.35, due on demand, signed by him, payable to H. R. Cannon, had not been destroyed; that he understood prior to the death of H. R. Cannon that this note had been marked paid and destroyed; that the note showed on outstanding indebtedness to H. R. Cannon of $31,980.19, besides interest; and that the note has in fact been paid in full. The petition prayed for an order relieving him from liability on said note and discharging him as executor of the estate of H. R. Cannon.
The petition in the instant case alleges that Cecil R. Cannon represented to all the heirs of H. R. Cannon that the note had been paid in full, and that, upon the faith of these representations, the petitioner, W. H. Cannon, withdrew an objection filed by him to the petition filed by Cecil R. Cannon, and all the heirs of H. R. Cannon joined in a request that the prayers of the petition be granted. On May 12, 1937, the court of ordinary granted the prayers of the petition discharging Cecil R. Cannon from liability on the note, and, after reciting that it appeared no assets of the estate had come into the hands of Cecil R. Cannon, he was discharged as executor.
The petition in the instant case then alleges that Cecil R. Cannon was the oldest son of H. R. Cannon, had been associated with him in business for a number of years, and was trusted by petitioners and the other heirs; that he knew all the facts, and the petitioners were without means of knowing the facts; that in 1924 C. R. Cannon and H. R. Cannon entered into a partnership for the operation of a hotel in Atlanta, Georgia, and that the said Cecil R. Cannon never accounted to H. R. Cannon for his share of the profits derived from the operation of the hotel; and that H. R. Cannon owned a lot in Haynes Manor in Atlanta, Georgia, for which no accounting had been made. Since the death of both executors of the estate of H. R. Cannon, no legal representative of the estate has been appointed.
It is alleged that the note above referred to had not in fact been paid in full, but that more than $50,000.00 is now due on the note; that certain credits appearing on the note are not in the handwriting of H. R. Cannon; that, because Cecil R. Cannon was the oldest brother of the petitioners, and had for a number of years been in business with their father, they reposed confidence in him, and were misled by his statements; and that the petitioners did not learn of the facts set out in the petition until after the death of Cecil R. Cannon.
The petition prayed for an accounting of all the assets of the H. R. Cannon estate, including specifically the balance due on the note referred to in the petition, and the profits derived from the partnership operation of the hotel, including the salary that was to be paid to H. R. Cannon; that the judgment of the court of ordinary declaring that the note from Cecil R. Cannon had been paid, and discharging him as executor be vacated and set aside, and for general relief.
A general demurrer was filed to the petition, on the grounds that the action was barred by laches; that the action was barred by the statute of limitations; that the plaintiffs were proceeding as heirs or legatees of H. R. Cannon when the alleged right of action was in the representative of the estate; that the petitioners fail to show that any assets of the estate ever came into the hands of Cecil R. Cannon in his fiduciary capacity as coexecutor for which he did not account; and that the petitioners seek to recover on an alleged debt owed by Cecil R. Cannon as an individual to the estate of H. R. Cannon, for which there is an adequate remedy at law, and for which the petitioners have no right to sue. The trial court sustained the general demurrer and dismissed the petition. The exception is to that judgment.
1. "The limitations herein provided shall apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights." Code, § 3-712. "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." § 37-119. "Equity will not aid in the enforcement of stale demands. . . There is no principle of equity sounder, more conservative and more prolific, in all the fruits of peace, than this: that he who slumbers over his rights, with no impediment to his asserting them, until the evidence upon which a counter claim is founded, may from lapse of time, be presumed to be lost; until the generation cognizant of the transactions between the parties, has passed away, and until original actors are in their graves, and their affairs are left to representatives — the Law, in the exercise of an equitable sovereignty, presumes it to be unjust, that under such circumstances, a complainant should be heard; and in nine cases out of ten, it is unjust in fact, as well as in theory. . . the principle upon which Courts of Equity proceed in such cases, is, that the lateness of the demand, arising from lapse of time, is presumptive evidence against its justice . . . The rule in equity applies to accounts. That Courts will not permit them to be overhauled in favor of a party who has slept upon his rights, without any just cause, for a number of years." Akins v. Hill, 7 Ga. 573. See also Citizens Southern National Bank v. Ellis, 171 Ga. 717 ( 156 S.E. 603), Cooper v. Aycock, 199 Ga. 658 ( 34 S.E.2d 895), Johnson v. Sears, 199 Ga. 432 ( 34 S.E.2d 571), Flemister v. Billups, 202 Ga. 132 ( 42 S.E.2d 376), and cases cited in these opinions.
In the instant case, H. R. Cannon died in August of 1936. On January 4, 1937, which time had to be shortly after he qualified as executor of H. R. Cannon, Cecil R. Cannon filed his petition in the ordinary's court, setting forth the fact that he had discovered that the note in question had not been destroyed, as he understood it had been before the death of H. R. Cannon, and that he had paid the note, and he prayed that he be relieved of liability on the note, and that he be discharged as executor. It is a fair presumption that he filed his petition to be discharged as executor for the reason that he had discovered this adverse interest, since it does not appear that his coexecutrix was also discharged. Certain it is, from the allegations of the petition, that the plaintiffs in error had notice of the petition filed in the ordinary's court and its contents. This put them on notice of the contention of Cecil R. Cannon that the note had been paid. We do not hesitate to say that thereafter they dealt with him at arms length.
After obtaining the information on January 4, 1937, the plaintiff in error did exactly nothing until this suit was filed on December 28, 1948. In the meantime, death had sealed the lips of Cecil R. Cannon and his coexecutrix, Martha E. Cannon. It does seem that the slightest diligence would have required these plaintiffs in error to have made some move or effort to enforce their claim during this period of more than 11 years. The allegations to the effect that the plaintiffs in error did not know the facts alleged in the petition until after the death of Cecil R. Cannon can be based upon nothing except their own negligence, which equity, very wisely, will not reward. Conceding that the plaintiffs in error in this case had a right to bring this petition in their individual names, which question we do not pass upon, under the rules of law enunciated in the authorities above cited, it would be hard to conceive of a state of facts falling more squarely under the rule as to laches than the state of facts alleged in the petition in this case.
2. Since we have ruled that the action is barred by laches, no ruling will be made as to the statute of limitations.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents.