Opinion
15563.
SEPTEMBER 7, 1946.
Equitable petition. Before Judge Franklin. Richmond Superior Court. May 11, 1946.
John E. Stansfield and Pierce Bros., for plaintiff.
Isaac S. Peebles, Jr., for defendants.
Letters of guardianship issued by a court of ordinary for one as being a person imbecile from illness and old age may be cancelled and set aside by a court of equity in a suit brought for that purpose by the person so placed under guardianship, and alleging, as ground for such relief, that the plaintiff was of sound mind and capable of acting for himself, and that such letters of guardianship were procured by actual fraud.
( a) In the instant case, the allegations of the petition were sufficient to state a cause of action, and the general demurrer should have been overruled.
No. 15563. SEPTEMBER 7, 1946.
On January 30, 1945, Whit Hampton Fulmer filed an equitable petition in the Superior Court of Richmond County, seeking cancellation of letters of guardianship issued by the Court of Ordinary of that county to Ella E. Bland as guardian of the property of petitioner, as one who had been adjudged to be a person "imbecile from illness and old age," and praying also for cancellation of two documents in the forms of a deed and a contract, and for other relief. The following were named as defendants: Catherine Bland Wilkins, Ella E. Bland, Rose Kitchens, Dorothy Fulmer Meyers, Eloise Griffin, and United States Fidelity and Guaranty Company, as a surety. It appears that Eloise Griffin was not served. A voluntary dismissal was entered as to United States Fidelity and Guaranty Company on February 1, 1945. Thereafter the petition was amended. The defendants, Catherine Bland Wilkins, Ella E. Bland, Rose Kitchens, and Dorothy Fulmer Meyers, filed a demurrer, which as amended contained seven grounds. The court sustained the demurrer upon all grounds, and the plaintiff excepted.
The allegations of the petition were substantially as follows:
The plaintiff is the owner in fee simple of two described lost of land situated on the southeast side of the Milledgeville Road, near the southern boundary of the City of Augusta, which he purchased in 1928, and which was then conveyed to him by a deed, duly recorded during the same year. After purchasing these two lots, the plaintiff made valuable improvements.
For more than twenty-five years before December 1, 1941, the plaintiff was in the employ of Georgia Power Company or its predecessors; and some time in December, 1941, he suffered a stroke of paralysis, which incapacitated him to perform his ordinary work with the power company. For some time thereafter he received his regular wages, but was later placed on a pension of $40 per month, less 60 cents deducted each month by the power company to pay premiums for insurance on his life. He has also been receiving social-security benefits through the Augusta, Georgia, office, at the rate of $38.63 per month.
Up until July 28, 1944, the plaintiff lived in his home located on said lots, purchased in 1928, and for some time previous thereto he had permitted Catherine Bland Wilkins, a niece of his wife, and Dorothy Fulmer Meyers, his daughter, and Ella E. Bland, the mother of Catherine Bland Wilkins, and others, to live in the home with him.
On or about July 28, 1944, the plaintiff realized that said Catherine Wilkins, her mother Ella E. Bland, and Dorothy Fulmer Meyers were acting in a strange and peculiar way, which aroused his suspicions that they were seeking in some way to oust him from his home; and they harassed and annoyed him to such an extent that he concluded to leave Richmond County, Georgia, and make his home in Graniteville, South Carolina.
Shortly after going to South Carolina, on or about September 8, 1944, Eloise Griffin and Rose Kitchens, daughters of Ella E. Bland, together with Catherine Bland Wilkins, came over to Graniteville, where he was living, and told him that his residence had fallen into a state of disrepair and needed immediate improvements, and unless this was done the columns in front of his house would fall out and the roof of his piazza would collapse; and insisted that he accompany them back to Richmond County, Georgia, to arrange for the repairing of his house, whereupon he came with them, and upon arriving at his house on the Milledgeville Road three men were there, none of whom he was acquainted with. One or the other of them, whose name he does not know, began to make inquiries of him as to his property, and propounded other questions to him, and becoming exasperated at what he deemed impertinence upon the part of strangers inquiring into his personal and private affairs, the plaintiff inquired, "What in the hell is all this about" Failing to receive an answer, he ordered them to leave, whereupon they left his house, and one of them, as they left, saying to him, "We are going to put you in the asylum." The plaintiff was non-plussed and perplexed and had no idea of what was intended, remained in his residence until the next morning, and then boarded a bus for Graniteville, South Carolina.
Thereafter, he procured the services of an attorney at law and advised him as to what seemed to him the strange and mysterious conduct of Catherine Bland Wilkins, Rose Kitchens, Dorothy F. Meyers, Ella E. Bland, and Eloise Griffin. Said attorney came to Richmond County, Georgia, and examined the records in the office of the clerk of the superior court, and the office of the court of ordinary, in said county; and returned and advised the plaintiff that he found a paper on record in said clerk's office, dated February 24, 1944, and recorded on August 22, 1944, purporting to be signed by Whit H. Fulmer and Dorothy F. Meyers, and purporting to convey a tract of land, consisting of all the land above described, on which there are no improvements; which recorded instrument recited that it was signed in the presence of Marion E. Kreps and G. A. Ross, Notary Public, Richmond County, Georgia, on August 5, 1944. The plaintiff never signed such instrument, nor did he authorize any person to sign his name for and in his behalf, nor was such instrument ever executed.
Inquiry being made of Marion A. Kreps and G. A. Ross as to whether or not they had witnessed the execution of said paper purporting to be a deed, it developed that on August 5, 1944, some one had brought a paper with the names of Whit H. Fulmer and Dorothy F. Meyers thereon, to the garage maintained by Kreps on the Savannah Road, and had asked him to witness the same; and that they had asked Ross, a notary public, also to put his name on the paper, and thereupon said Kreps and Ross, Notary Public, Richmond County, Georgia, on August 5, 1944, subscribed their names to said instrument, which bore the names of Whit H. Fulmer and Dorothy F. Meyers, neither of whom being present at the time of the signing by said two witnesses; and said instrument was thereafter recorded. The plaintiff did not sign such paper, and did not authorize any one to sign for him, nor did he receive any consideration therefor, nor did he part with the title and possession of said property; and said paper is null and void, a forgery, and passes out of petitioner no right, title, or interest in said property.
Some time before the plaintiff left Richmond County, Georgia, to establish his residence in Graniteville, South Carolina, he found in his home a certain instrument in writing purporting to be dated February 24, 1944, and purporting to be signed by Dorothy Fulmer Meyers, Whit H. Fulmer, and Catherine Bland Wilkins, reciting "that the other consideration expressed in a deed contemporaneously herewith made by Dorothy Fulmer Meyers and Whit H. Fulmer, to Mrs. Catherine Bland Wilkins," to a lot on the north side of the Milledgeville Road (describing it the same as in the purported deed of February 24, 1944 mentioned above), "is the agreement of the grantee to do the following things:
"1. Mrs. Catherine Bland Wilkins shall live in the house known as 2145 Milledgeville Road, Richmond County, Georgia, for and during the natural life of Whit H. Fulmer, without payment of any rent therefor.
"2. That Whit H. Fulmer shall also live with the said, Mrs. Catherine Bland Wilkins in the said house and occupy a room therein.
"3. That the said Mrs. Catherine Bland Wilkins shall furnish the said Whit H. Fulmer board without additional charge, and shall minister unto his needs while ill or incapacitated as long as he shall live. This, however, shall not include doctor's bill nor drugs nor clothing or other personal needs except said board and whatever lay nursing that she can do. This does not include a professional nurse if same be required.
"4. Taxes on said premises known as 2145 Milledgeville Road shall be paid by the owners of 2145 Milledgeville Road, and the necessary repairs to said premises shall be made at their expense."
Said instrument was not signed by the plaintiff nor by any one authorized by him to do so, and said instrument is null and void. The said two purported instruments are null and void, pass no title out of petitioner, and are a cloud on the plaintiff's title.
The said attorney employed by the plaintiff reported to the plaintiff that a lunacy proceeding had been instituted against him by Rose Kitchens, and that on September 8, 1944, a lunacy commission had adjudged him as "a person imbecile from illness and old age;" and that on September 12, 1944, Ella E. Bland had been appointed guardian of his property, which was represented to be of the value of $3000; and that United States Fidelity and Guaranty Company had been given as surety on said guardian's bond.
At the time said lunacy commission was had, the plaintiff was of sound mind and was not an imbecile; and while he had suffered a stroke of paralysis some years previously, in December, 1941, which entirely incapacitated the use of his right hand, his mental faculties were good, and he was entirely capable and able to look out for and care for himself, and receive his pension from Georgia Power Company and also his social security allowance.
The letters of guardianship issued to Ella E. Bland by the Court of Ordinary of Richmond County, Georgia, on September 12, 1944, were fraudulently procured and are null and void, in that the plaintiff was induced to come to Augusta, Richmond County, Georgia, with a view of looking after the repairing of his property, when in truth and in fact the said Ella E. Bland, Dorothy Fulmer Meyers, Catherine Bland Wilkins, Rose Kitchens, and Eloise Griffin, had conspired and confederated among themselves to have him declared "a person imbecile from illness and old age," when they knew that he was of sound mind and fully able and capable of caring for himself, of living in his home, and receiving his own pension from Georgia Power Company, and of receiving the compensation allowance from Social Security Board at Augusta, Georgia.
Said letters of guardianship — fraudulently procured by imposing upon the commissioners and the Court of Ordinary of Richmond County misrepresentations that the plaintiff was "a person imbecile from illness and old age" — are void and illegal, and should be cancelled and set aside, and decreed to be of no effect. The plaintiff attached to his petition, as Exhibit "B," a copy of the letters of guardianship issued on September 12, 1944, by the Court of Ordinary Richmond County, Georgia, to Ella E. Bland, as guardian of the property of Whit Hampton Fulmer.
Since the grant of said letters of guardianship to Ella E. Bland, on September 12, 1944, she has been collecting the plaintiff's pension from Georgia Power Company, but the officer in charge of the Social Security Board office in Augusta refuses to acknowledge the legality of such guardianship, and has not paid and will not pay to Ella E. Bland the monthly allowance which he is entitled to receive as social-security benefits.
Said two lots and parcels of land, conveyed to the plaintiff on January 12, 1928, together with the improvements thereon, are his sole and individual property, and neither said Dorothy F. Meyers, Catherine Bland Wilkins, nor any other person, has any right, title, or interest therein.
The plaintiff is desirous of having said letters of guardianship heretofore issued by the Court of Ordinary of Richmond County, on September 12, 1944, declared to be illegal and void, and of no effect, so that he may draw his pension from Georgia Power Company, and his social-security allowance for the care, support, and maintenance of himself.
The plaintiff desires that said instruments, purporting to convey an interest in his property, be brought into court and decreed to be null and void, and that the State's writ of ejectment do issue to dispossess Catherine Bland Wilkins from the possession, custody, and control of his said home, located in Richmond County, Georgia, known as 2145 Milledgeville Road.
The plaintiff alleged that he is without a complete and adequate remedy at law.
The petition contained prayers: (a) For an accounting by Ella E. Bland as to moneys collected from Georgia Power Company, and as to rents for the plaintiff's house at 2145 Milledgeville Road from July 15, 1944, at the rate of $30 per month; (b) that the instrument (in the form of a deed as described above) be cancelled and the property described therein decreed to be his property as against any right, title, or interest of Dorothy Fulmer Meyers or Catherine Bland Wilkins; (c) also that the instrument attached to the petition, and marked Exhibit "A," be produced in court and be cancelled; (d) that the State's writ of injunction do issue, dispossessing said Catherine Bland Wilkins from said house known as 2145 Milledgeville Road; (e) that the letters of guardianship heretofore issued to Ella E. Bland by the Court of Ordinary of Richmond County on September 12, 1944, as guardian of the property of Whit Hampton Fulmer, be cancelled, and the commission issued to inquire into the condition of petitioner be cancelled; (f) for an order of publication on Dorothy Fulmer Meyers, a non-resident; and (g) for process.
By an amendment, the petitioner alleged: To avoid a multiplicity of suits, petitioner brings this his proceeding in equity against said defendants, against each of whom he is praying substantial relief. While the letters of guardianship issued to Ella E. Bland are illegal and void, and all of her acts and doings as guardian for petitioner are illegal and void, yet the plaintiff is willing in this proceeding for an accounting that she be credited with any disbursements made to him.
The grounds of demurrer to the original petition were as follows:
1. Because it affirmatively appears that the plaintiff was duly adjudged by a lunacy commission appointed by the Court of Ordinary of Richmond County to be a person imbecile from illness and old age and that a guardian should be appointed for him; and that the judgment thereon is sought to be collaterally attacked, and the plaintiff's remedy is to apply to said ordinary for a revocation of said letters of guardianship and for an adjudgment that he is sane; and so much of said petition as attacks said guardianship proceedings should be stricken therefrom on the ground that the same is a collateral attack upon said decision of said court of ordinary.
2. Because said petition sets forth no cause of action against these defendants or either of them, it affirmatively appearing from said petition that the plaintiff has a guardian, appointed by said court, which is a court of competent jurisdiction, and said letters of guardianship have never been revoked; and the plaintiff can not maintain his suit and has no standing in court on account of said adjudication.
3. Because the petition shows that he has been duly adjudged incompetent, and he can not maintain a suit in his own name.
4. Because said petition does not offer to do equity by praying that said guardian be credited with whatever sums she may have spent for the benefit of the plaintiff's estate.
After the plaintiff had amended his petition, the defendants amended their demurrer by adding the following grounds:
1. Because it appears from the allegations in said petition in reference to the judgment of the court of ordinary, that the plaintiff has an adequate and complete remedy at law under the provisions of § 49-609 of the Code of Georgia.
2. Because it affirmatively appears that the plaintiff can not maintain his said suit, in that, under the allegations of said petition, he has been adjudged incompetent.
3. Because no cause of action is set forth in said petition.
All grounds of the demurrer were general in nature, although different contentions were urged therein as to why the petition should be dismissed. While these contentions may not be referred to in this opinion by number or other specific designation, we shall undertake to deal with all of them, on principle.
The plaintiff filed suit in the Superior Court of Richmond County to cancel and set aside letters of guardianship issued by the court of ordinary of that county to one of the present defendants as guardian for such plaintiff, described as having been adjudged an imbecile. The petition contained, among others, the following allegations as to the manner in which the letters of guardianship were procured:
That a lunacy proceeding was instituted by Rose Kitchens, a daughter of Ella E. Bland, and on September 8, 1944, a lunacy commission adjudged the plaintiff to be a person "imbecile from illness and old age." Thereupon, on September 12, Ella E. Bland was appointed guardian of the plaintiff's property. The petition further alleged that at the time said lunacy commission was had, the plaintiff was of sound mind and was not an imbecile; that the letters of guardianship were fraudulently procured; that the plaintiff was induced to come from South Carolina, where he was then residing, to Augusta, Georgia, with a view of looking after and repairing his property there, when in truth and fact the defendants had conspired and confederated among themselves to have the plaintiff declared a person imbecile from illness and old age, when they knew him to be of sound mind and fully able and capable of caring for himself, of living in his home, and of receiving his pension and social-security allowance; that said letters of guardianship were fraudulently secured by imposing upon the commission and the Court of Ordinary of Richmond County misrepresentations that the plaintiff was a person imbecile from old age; and that the letters of guardianship are void and should be cancelled and set aside and decreed to be of no effect. The plaintiff also prayed that such letters of guardianship be cancelled and declared to be null and void.
"The judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the petitioner." Code, § 37-219. "In all cases of fraud (except fraud in the execution of a will) equity has concurrent jurisdiction with the law." § 37-701.
Under these long-established principles, this court has many times held that judgments of courts of ordinary, including judgments appointing and discharging administrators, may be cancelled and set aside by a court of equity in a direct proceeding for that purpose, on the ground that they were procured by fraud; and we can see no reason why the same principles should not be applied to letters of guardianship, in a proper case. The following are some of the cases that would seem to be applicable. Loyless v. Rhodes, 9 Ga. 547 (3); Wallace, v. Walker, 37 Ga. 265 (92 Am. D. 70); McArthur v. Matthewson, 67 Ga. 134 (4); Neal v. Boykin, 129 Ga. 676 (2) ( 59 S.E. 912, 121 Am. St. 237); Wallace v. Wallace, 142 Ga. 408 (2) ( 83 S.E. 113); Jackson v. Jackson, 179 Ga. 696 (2) ( 177 S.E. 591); Bowers v. Dolen, 187 Ga. 653 ( 1 S.E.2d 734).
The allegations of the petition, as above summarized, were sufficient as against general demurrer to allege actual fraud. Emlen v. Roper, 133 Ga. 726 (2) ( 66 S.E. 934); National Bank of Savannah v. Evans, 149 Ga. 67 (2a) ( 99 S.E. 123); Castleberry v. Wells, 183 Ga. 328 (3) ( 188 S.E. 349); Abercrombie v. Hair, 185 Ga. 728 (2) ( 196 S.E. 447); Peoples Loan Co. v. Allen, 199 Ga. 537 (1), 558 ( 34 S.E.2d 811).
Nor does the petition attempt a mere collateral attack upon the judgment of the court of ordinary, as contended. On the other hand, it is direct proceeding in a court of equity to set aside the appointment of a guardian alleged to have been procured by actual fraud. It meets the appointment head on, and asks the court of equity to put it out of the way, for that cause. Griffin v. Sketoe, 30 Ga. 300 (3); Brown v. Parks, 169 Ga. 712 ( 151 S.E. 340, 71 A.L.R. 271); Bowers v. Dolen, 187 Ga. 653 (2) (supra). This ruling is not in conflict with the decision is Shiflett v. Dobson, 180 Ga. 23 ( 177 S.E. 681), cited and relied on by counsel for the defendants. That was a habeas corpus case, and no equitable principle was involved. Consequently, for the purposes of that case, the judgment there under attack had to be treated as conclusive.
While it is declared in the Code, § 49-609, that any person for whom a guardian shall be appointed may, upon restoration to sanity and capacity, personally or by attorney, petition the ordinary setting forth the fact and praying revocation of such guardianship, this statute presupposes a valid appointment based upon actual insanity or imbecility; and it would not be applicable so as to bar a suit in equity, where the plaintiff alleged in effect that he was never an insane or imbecile person, and sought to have such guardianship set aside and decreed to be null and void because of actual fraud. Under the allegations of the petition, which for the purpose of demurrer must be taken to be true, the plaintiff's condition was not one of "restoration," for there could be no condition of restoration unless there had been a previous condition of insanity or imbecility.
Nor was the petition otherwise demurrable on the ground that the plaintiff had an adequate remedy at law. "The superior court in the exercise of its equitable jurisdiction may set aside a judgment of the court of ordinary, procured by fraud, upon proper allegations and proof. The party seeking such relief is not compelled to move to set aside the judgment in the court of ordinary." Lester v. Reynolds, 144 Ga. 143 (2) ( 86 S.E. 321); Brown v. Parks, 169 Ga. 712 (2) (supra); Griffin v. Sketoe, 30 Ga. 300 (4) (supra); Beavers v. Williams, 199 Ga. 113 ( 33 S.E.2d 343).
Moreover, since the plaintiff in this same action sought to cancel as forgeries two instruments, at least one of which was a cloud upon the title to his property, and since he could not maintain an independent suit for such cancellation in his own name alone so long as the guardianship is outstanding, the petition thus showed affirmatively that by the instant proceeding a multiplicity of suits may be avoided. Code, § 37-301. See also Code, §§ 37-105, 37-120; Powell v. McKinney, 151 Ga. 803 (7) ( 108 S.E. 231); Glover v. Rome, 173 Ga. 239 (2) ( 160 S.E. 249).
While, as we have just indicated, a person for whom a guardian has been appointed can not ordinarily maintain a suit in his own name without the aid of his guardian or other representative (Code, § 37-1003; Wood v. Wood, 200 Ga. 796, 38 S.E.2d 545), this rule would not have application so as to prevent such person from instituting by and for himself alone, a suit in equity directly against the guardian, alleging in effect that he is capable of managing his affairs, and seeking, on other and sufficient allegations, to have such appointment and letters of guardianship cancelled and set aside as having been procured by actual fraud. Otherwise, the appointment, though voidable in equity, would stand as a bar to the right of the plaintiff to bring a suit in equity for the very purpose of having it declared void and set aside. In such a case, on proof of the fraud as alleged, equity will either put the impediment out of the way, or treat it as being void and of no effect. Griffin v. Sketoe, 30 Ga. 300 (3), 304 (supra); Gentle v. Georgia Power Co., 179 Ga. 853, 855 (4) ( 177 S.E. 690). Of course, if such proof is not made, the entire case, including the right to sue. will fall.
The petition was not subject to general demurrer as showing that the plaintiff has not done or offered to do equity, especially in view of the prayer for an accounting. Wynne v. Fisher, 156 Ga. 656 (2) ( 119 S.E. 605); Fletcher v. Fletcher, 158 Ga. 899 (6) ( 124 S.E. 722).
So far as appears, the mere dismissal of the suit as to the surety company would not in any manner affect the plaintiff's right to proceed against the other defendants. The petition as amended stated a cause of action, and the general demurrer as amended should have been overruled.
Judgment reversed. All the Justices concur.