Opinion
13754, 13759.
SEPTEMBER 11, 1941.
Equitable petition. Before Judge Dorsey. Fulton superior court. March 3, 1941.
Thomas E. McLemore, David Pirkle, J. V. Poole, and C. R. Wheeless, for Latham et al. S. T. Allen, contra.
1. After title has passed under a deed to a life-tenant with remainder over of the fee to others, the grantor is without authority to thereafter convey the fee. Consequently a petition by such remaindermen against the successors of the grantee under a second deed, to recover the land, was not subject to demurrer as showing a superior title in the holders under the terms of the second deed. Nor did the petition show title by prescription in the defendant holders under the second deed, since the petition did not show the required seven years possession under such color. Furthermore, the petition negatived the good faith of any possession which might have been had by such holders.
2. While it has been held that, in an equitable suit for cancellation of a cloud on title, the prescriptive seven-year period will be applied by analogy as a limitation ( Pierce v. Middle Georgia Land c. Co., 131 Ga. 99 (4), 103, 61 S.E. 1114; Pavlovski v. Klassing, 134 Ga. 704 (3, a), 709, 68 S.E. 511; Murray v. Hawkins, 144 Ga. 613 (6), 622, 87 S.E. 1068; Harris v. Neuman, 179 Ga. 879, 883, 177 S.E. 698, and cit.; Hadaway v. Hadaway, 192 Ga. 265, 268, 14 S.E.2d 874), such application will not be extended to a case where the petition, good on its face, is primarily for the recovery of land by setting up the priority of the plaintiffs' original deed, and includes as parties defendant all persons claiming under subsequent instruments incidentally sought to be canceled. In such a suit the prayer for cancellation could not prevail unless the plaintiffs should recover in the main purpose of the suit; and if they should thus recover, their prayer for cancellation could afford no additional substantive relief to the plaintiffs or detriment to the defendants. This is true for the reason that a judgment in favor of the plaintiffs, decreeing title in them under their alleged prior deed, would in effect necessarily operate to nullify the subsequent instruments as set forth, under which it is alleged the defendants claim. In such a case there could be no reason or purpose in extending the rule of limitation, which the court has set up by analogy, in order to protect the interest of one who, in that event, would have no interest to protect.
3. Since the petition stated a cause of action for recovery of the land against all persons claiming under the subsequent conveyance, all of whom are made parties, and it would be proper to preserve all interests in statu quo pending the litigation, the prayer for a restraining order and injunction against the widow and children, claiming under a second deed from the original grantor and a year's support from the estate of a subsequent grantee holding under that deed, was not subject to general demurrer as showing no right to such relief, or as barred by laches of the plaintiffs. For the same reason, and the additional reason that the defendant holder of a security deed, claiming under such second deed, did not file a foreclosure suit until a year before the present suit, the prayer to restrain and enjoin that defendant from proceeding with the foreclosure was not precluded or barred.
4. Under the preceding rulings, on the writ of error in case No. 13754, brought by the defendants from the overruling of all except two grounds of their demurrers, the judgment is affirmed; and on the writ of error in case No. 13759, brought by the plaintiffs from the sustaining of two grounds of the demurrers, and the dismissal of the action against all except the youngest plaintiff, the judgment is reversed.
Nos. 13754, 13759. SEPTEMBER 11, 1941.
In 1939 five children of a decedent filed an equitable petition for recovery of twelve acres of land, cancellation of deeds and part of a year's support as a cloud on title, and injunction, against the widow and children of the decedent's brother, and the executor of an estate, who was then foreclosing on the land a security deed executed by the decedent's brother. The plaintiffs claim superior title by virtue of an unrecorded warranty deed, executed in 1902 to the decedent father by his sister, conveying the land to him for life and after his death to the plaintiff children, for the expressed consideration of five dollars and an "exchange of land." The case as made by the petition is: that the father went into possession under this deed; that in 1909 he filed in the superior court a petition to sell and reinvest the interest of his children, attaching a copy of the 1902 deed; that this petition was served, but, so far as indicated, no guardian ad litem was appointed, and the proceeding was not completed, the ages of the four children then in life being from four to fourteen years, and the fifth being unborn, and their dates of birth being in 1896, 1898, 1904, 1906, and 1918; that in 1911, the attorney who drew and witnessed the original deed, and was the original executor of the defendant estate before his death in 1928, the life-tenant (father of plaintiffs), and his brother conspired with the grantor sister "to defeat the interest and rights" of plaintiffs as remaindermen under the original deed, by having the grantor execute a second deed to the father in fee simple, omitting any remainder; that the new deed, recorded in 1911, recited the same consideration as the original deed, but, while referring to "the exchange of land heretofore made" and stating that "the exchange of property was made between said parties on or about January 31, 1902," this deed did not mention the prior deed. It is further alleged that in 1912 the plaintiffs' father executed to his brother a deed to the land, which was recorded, and which recited a consideration of $1600 including payment of a previous loan; that in 1918 the brother executed to the attorney, as executor of the defendant estate, the security deed, which was recorded and is now sought to be foreclosed by the successor executor, to secure a loan of $2500, including payment of a previous loan deed of $2000 made by the brother; that the brother died in 1920; and that plaintiffs' father, the life-tenant, died in 1923. The petition sets forth that in 1926 the widow of the brother, with the aid and counsel of the attorney, had a year's support set apart to her and the defendant children, then minors, from the estate of the brother, including the land in question; that at this time, and at the time of the execution of the security deed, all of the defendants had "present knowledge of the remainder interest of petitioners," and acquired their interests with knowledge of plaintiffs' interest. It is further stated that the attorney, who drew and witnessed all the deeds prior to the security deed and drew that deed, occupied a dual relation to the parties to the instruments; and that a confidential relation existed which made it his duty and the duty of the defendants to inform plaintiff of the facts, and not keep silence. Plaintiffs allege, that at the time of these transactions they were minors, reaching majority respectively in 1917, 1919, 1925, 1927, and 1939; that they relied on the attorney, who was representing them in the estate of their grandmother; and that they did not discover the execution of the original deed of 1902, conveying their remainder interest, until a few months before they filed the suit in 1939. No relief is sought as to the attorney, and the representative of his estate is not made a party. All other persons at interest under the instruments alleged are made parties. The prayers are that "by verdict, judgment, and decree . . the title to said 12 acres of land . . be and is in your petitioners;" that the second deed of 1911 to plaintiffs' father, and the deed of 1912 from him to his brother be surrendered into court; that these instruments together with the security deed, and so much of the year's support as affects title to the land in dispute, be declared null and void and of no force and effect against plaintiffs' title; that the executor of the estate be restrained and enjoined from proceeding with the pending foreclosure of the security deed, begun in 1938; that he and the defendant widow and children be enjoined from doing any act affecting the title; and that the plaintiffs have such other and further relief as may be meet and proper.
The defendants filed general and special demurrers on the grounds, that the petition showed no cause of action against the executor, and stated no cause of action at law or in equity; that it showed a bar by "acts of limitations" against all but the youngest plaintiff, and alleged no facts sufficient to remove such bar; that the administrator of the estate of plaintiffs' father was not made a party; that "the administrator" was not made a party defendant; and that there was a misjoinder of parties defendant.
The court sustained two grounds of the demurrer, that the petition stated no cause of action against the executor; and that all of the plaintiffs except the youngest were "barred by the acts of limitations," and no facts of fraud were alleged sufficient to "remove the bar of the acts of limitation" as to four of the plaintiffs. The court overruled other grounds of demurrer, and dismissed the action as to all but the youngest plaintiff, who attained her majority in 1938. In writ of error No. 13754 the defendants excepted to the rulings adverse to them. In No. 13759 the plaintiffs excepted to the sustaining of the two grounds of demurrer.
1. As to whether the petition stated a cause of action against general demurrer, it is the rule that when a court of equity has acquired equitable jurisdiction, it will grant complete relief as to all matters to which the parties may be entitled under the pleadings and the proof, even though such relief may include legal rights and remedies. Kniepkamp v. Richards, 192 Ga. 509 ( 16 S.E.2d 24), and cit.; Hall v. English, 47 Ga. 511 (2); Code, § 37-105. Even though a plaintiff might not be entitled to equitable relief under his averments or prayers, the petition should not be dismissed on general demurrer if it states a cause of action good at law, since in such a case he would be entitled to prove and enforce his strictly legal rights and remedies according to the rules of law. Grant v. Hart, 192 Ga. 153 ( 14 S.E.2d 690), and cit.; Woodall v. Williams, 176 Ga. 343, 346 ( 167 S.E. 886); Grimmett v. Barnwell, 184 Ga. 461 ( 192 S.E. 191), and cit. Since the passage of the uniform procedure act (Code, § 37-901), "an action for land may be included in a petition for equitable relief." English v. Little, 164 Ga. 805 (2-b) ( 139 S.E. 678); Hunter v. Bowen, 137 Ga. 258 ( 73 S.E. 380); Baxter v. Camp, 126 Ga. 354 (2), 359 ( 54 S.E. 1036); Powell on Actions for Land, § 46. Since the petition, although primarily seeking a recovery of land, also sought, not only the incidental equitable remedy of cancellation of alleged clouds on title, but the alleged necessary remedy of injunction, equitable jurisdiction was properly invoked; and with all parties at interest before the court, both legal and equitable relief could be granted as the proof might authorize.
( a) "If one having the title to land sells and conveys the same by deed to another, he can not thereafter by his deed convey to a subsequent purchaser any title thereto. The mere surrender or cancellation of a deed will not divest the title to land which has once been conveyed and vested by transmutation of possession." Sikes v. Seckinger, 164 Ga. 96 (3), 109 ( 137 S.E. 833), and cit.; Holder v. Scarborough, 119 Ga. 256 (2) ( 46 S.E. 93). Accordingly, where, as alleged in the petition, a grantor executed a deed to plaintiffs' father for life with remainder to them, for an expressed valuable consideration, and the father went into possession under the instrument, the grantor retained no title which she could afterwards convey to the father by a deed in fee-simple, omitting the remainder. Consequently, under the averments that the defendants claim under this second deed to the father, other subsequent deeds from him and his grantee brother, and a year's support to the brother's widow and children including the same land which was deeded in the previous conveyances, and that all the defendants acquired their interests with actual knowledge of the plaintiffs' deed, though unrecorded, the petition showed a superior title in the plaintiffs and a right to recover the land. The petition also showed a cause of action as to necessary equitable relief by injunction, and as to incidental equitable relief by cancellation of the instruments subsequent to the original deed as clouds on title.
( b) The setting apart of the year's support to the defendant widow and children from the estate of the father's grantee did not operate as an adjudication of title to the land in question against the plaintiffs, since they were not parties to that proceeding, and since "a court of ordinary has no jurisdiction to try and determine conflicting claims of ownership . . arising between a widow applying for . . a year's support and a person asserting title adversely to the estate of her deceased husband." Dix v. Dix, 132 Ga. 630 (2) ( 64 S.E. 790), and cit.; Zeagler v. Zeagler, 190 Ga. 220, 225 ( 9 S.E.2d 263); Smith v. Pitchford, 189 Ga. 307, 309 ( 5 S.E.2d 766); Brooks v. Brooks, 184 Ga. 872, 875 ( 193 S.E. 893); Smith v. Smith, 101 Ga. 296, 297 ( 28 S.E. 665).
( c) In suits to recover land, there is no statute of limitations in this State, title by prescription having been substituted for such statutes. City of Barnesville v. Stafford, 161 Ga. 588 (3, b), 592 (131 S.E. 487), and cit.; Gunter v. Smith, 113 Ga. 18 ( 38 S.E. 374). In so far as the petition sought a recovery of the land, it was not subject to demurrer as showing a prescriptive title in any defendant, for the reason that while there were averments as to a deed from plaintiffs' father to his brother (husband of the defendant widow and father of the defendant children), executed in 1912, under which all the defendants are alleged to claim, and a year's support set apart in 1926 to the widow and children, which might have afforded good color of title ( Johnson v. Key, 173 Ga. 586, 160 S.E. 794), the petition did not show any sort of actual possession by any defendant either for seven years under such color, or for twenty years without color of title. Code, §§ 85-401-85-407.
( d) As to the prayer for recovery of the land, the petition did not disclose a prescriptive title in the defendants, for an additional reason independent of a failure to show actual possession by the defendants. While it is true that, if actual possession had been shown, good faith in the origin of such possession, required by the Code, §§ 85-402, 85-407, would ordinarily be presumed ( Baxley v. Baxley, 117 Ga. 60 (4), 62 ( 43 S.E. 436), and cit.; Teel v. Griffin, 142 Ga. 245 (2) ( 82 S.E. 662), this would not be true if actual possession had been alleged, but this was accompanied by other averments negativing good faith. "When the doctrine of prescription is involved in a suit in ejectment, good faith is one of the main elements in the case; and, as we have uniformly held, mere notice of an outstanding title is not evidence of bad faith. Good faith is not inconsistent with such notice. If a person buys land in good faith, believing he is obtaining a good title, and enters into possession thereof, and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title he purchased originally was good or not. The very object of the doctrine of prescription is to make a bad title good when the necessary requisites have been complied with. Of course, if a person purchases land in bad faith, knowing that the title he purchases is fraudulent, it can never ripen into a good title;" the question of good faith being ordinarily one of fact for the jury. Lee v. Ogden, 83 Ga. 325, 329 ( 10 S.E. 349); Lee v. O'Quin, 103 Ga. 355 (3), 364 ( 30 S.E. 356), and cit.; Quarterman v. Perry, 190 Ga. 275 (2) ( 9 S.E.2d 61); Metropolitan Life Insurance Co. v. Hall, 191 Ga. 294 (5), 306 ( 12 S.E.2d 53); Chattahoochee Fertilizer Co. v. Quinn, 169 Ga. 801 (4), 804 ( 151 S.E. 496); Garrett v. Adrian, 44 Ga. 274; Brown v. Wells, 44 Ga. 573, 575; McCamy v. Higdon, 50 Ga. 629 (2), 631; Street v. Collier, 118 Ga. 470 (5), 480 ( 45 S.E. 294), and cit.; Baxter v. Phillips, 150 Ga. 498, 500 ( 104 S.E. 196); Lane v. Lane, 87 Ga. 268 (2), 271 ( 13 S.E. 335); Powell on Actions for Land, 433-437, §§ 327, 329. A like rule obtains where a prescriptive title is claimed under a year's support, that a claimant must have entered "thereunder honestly and in good faith." Johnson v. Key, 173 Ga. 586, 590 (supra). Accordingly, the averments as to the actual knowledge by the defendants and their predecessors in title of the existence of the plaintiffs' remainder interest under the oldest deed, and as to the alleged conspiracy between the executor of the defendant estate, plaintiffs' father, and his brother, under whom the defendants are alleged to claim, to obtain the second deed from the original grantor to the father, conveying to him a fee-simple title without remainder, after the grantor had already executed the deed containing the remainder to the plaintiffs, set forth such facts as, if proved, would show an absence of good faith equivalent to actual fraud, and would prevent the running of any prescriptive title.
( e) "The doctrine of stale demands," or laches as codified in § 3-712, "is a purely equitable one," and "is . . not applicable to a complaint for the recovery of land." City of Barnesville v. Stafford, 161 Ga. 592 (supra). Accordingly, as to the prayer for a recovery of the land, the petition showed no bar by prescriptive title or lapse of time against any plaintiff.
Under the preceding rulings, it is unnecessary to consider other questions argued, as to statutes of limitation or prescription not running against minors during infancy (Code, §§ 3-801, 85-411); as to prescription not running against one who owns a legal remainder after a life-estate, until the death of the life-tenant ( Mathis v. Solomon, 188 Ga. 311, 312, 4 S.E.2d 24, and cit.; Code, § 85-609); as to what if any actual fraud by the defendants, debarring or deterring plaintiffs from their action, is alleged, so as to suspend the running of statutes of limitation or of the time within which suit must be brought before a prescriptive title could be acquired; or as to whether the averments show that plaintiffs exercised proper diligence in discovering their remainder interest or any alleged fraud by the defendants, or are barred by laches.
( f) There is no merit in the ground of demurrer that the administrator of the estate of plaintiffs' father was not made a party, since whatever title the father had under the first deed, containing the remainder to plaintiffs, expired at his death; and whatever title he might have acquired under the later deed from the same grantor, omitting the remainder, passed by his deed to the brother, under whom the defendants are alleged to claim. The additional ground that "the administrator" is not made a party defendant is too indefinite for consideration, and can not be enlarged by brief of counsel.
( g) All of the defendants, who are alleged to claim a title or interest in the land, being necessary or proper parties for the relief prayed, there was no misjoinder of parties defendant.
Under the foregoing rulings, the amended petition was good against all grounds of demurrer.
Judgment affirmed in No. 13754; reversed in No. 13759. All the Justices concur.