Opinion
15292, 15299.
JANUARY 16, 1946.
Equitable petition. Before Judge Boykin. Meriwether Superior Court. June 25, 1945.
J. F. Hatchett and G. C. Thompson, for plaintiffs in error.
N. F. Culpepper and W. S. Allen, contra.
1. The trial court did not err in overruling the demurrers to the petition as amended, filed by all the defendants, on the grounds of misjoinder (a) of parties defendant, and (b) of causes of action; or as being multifarious and duplicitous, since the petition, although filed by several plaintiffs against several defendants, related to matters of the same nature, forming a connected series of acts in all of which the defendants were more or less concerned.
( a) The allegations of the petition as amended, to the effect that one of the defendants wrongfully took charge of the property and received profits for which she has not accounted, were not subject to demurrer on the grounds that the allegations were irrelevant, immaterial, prejudicial, and that they together with other allegations did not set forth any cause of action.
2. Where a father died intestate while seized and possessed of land on which there was a peach orchard, and an oral agreement was entered into between his widow and children to work the orchard, and from the proceeds pay the debts of the deceased, and, when all the debts were paid, for the mother and children to own the property, title to which for convenience would be held by the oldest child — a petition alleging that such an oral contract has been fully performed by all the parties, but that upon the death of the oldest child his widow wrongfully took control of and claimed the property as her own, is sufficient against general demurrer to allege the creation of a constructive trust.
3. Where the widow of one who held property under a constructive trust for the benefit of other persons took control of such property after her husband's death, the statute of limitations will not begin to run against those for whom the property was held in trust until the person holding, whether individually or as the personal representative of the deceased, gives notice to the equitable owners that possession is claimed adversely to them, or until other circumstances are shown which would be the equivalent of such notice.
4. While the petition does not allege insolvency of the defendants, such an allegation is not necessary to obtain injunctive relief where the petitioners allege that they are without an adequate remedy at law and that an injunction is necessary to avoid a multiplicity of suits.
5. Since no ground of demurrer sought to strike the prayer for a receiver, and it does not appear that the trial judge ruled on this question, it is unnecessary to determine whether or not the petitioners were entitled to the appointment of a receiver.
Nos. 15292, 15299. JANUARY 16, 1946.
The question here presented is whether or not the allegations of the petition as amended were sufficient to withstand the general and special demurrers interposed by the respective defendants.
Mrs. Kate Harris Rowe and four others filed in Meriwether Superior Court, against Mrs. R. A. Harris, individually and as the personal representative of R. A. Harris, deceased, and against H. G. Harris and J. T. Harris, a petition which as twice amended alleged substantially the following: The petitioners and the defendants, H. G. and J. T. Harris, are the children of T. D. Harris, who died intestate in September, 1922, and Mrs. Della Harris, who is now in life and resides at the Harris home place. Mrs. R. A. Harris is the widow and personal representative of the estate of R. A. Harris, deceased brother of the petitioners. At the time of the death of the petitioners' father, he owned and was in possession of a described 200-acre tract of land in Meriwether County on which 15,000 peach trees were planted; and he was likewise in possession of sufficient farm tools, equipment, and mules to operate the land. The father owed approximately $9000, and three named creditors held security deeds to portions of the 200-acre tract. The petitioners and their defendant brothers were then of ages varying from 7 to 25 years, and lived with their mother on the home place. The family had no money, but did have sufficient corn, meat, and other supplies to provide for themselves. None of the children or their mother had had any business training and no formal education. All of the children together with their mother discussed their financial situation, and covenanted and agreed orally among themselves that, if the creditors would give them time, they would remain at home and by their labor pay the debts of the deceased father; and that, when all of the debts were paid, they would own the 200 acres of land together, share and share alike. The petitioners orally agreed further that, for the sake of convenience, the oldest son, R. A. Harris, would apply for letters of administration upon the estate of their deceased father; and that as soon as practical he would acquire title to the 200 acres, with the understanding that the land together with the personal property would belong to all of them and their mother, share and share alike. Pursuant to the agreement, R. A. Harris was appointed administrator and operated the peach orchard during 1923, 1924, and 1925. The petitioners together with their mother worked the land, receiving no pay therefor, but acting pursuant to their agreement to pay the debts of their deceased father and own the premises themselves, share and share alike. During 1925 the peach orchard on the property made an abundant crop, which sold for a good price. Pursuant to an order of the court of ordinary, R. A. Harris on October 8, 1925, sold the equity of redemption in the 200 acres to J. S. Peters for a recited consideration of $5. On the same date J. S. Peters, by warranty deed which recited a consideration of $5, conveyed the property to R. A. Harris individually. The taking of the title by R. A. Harris individually was in accordance with the agreement between the petitioners, their mother, and their defendant brothers, it being understood that the oldest son should take the deed in trust, for convenience in financing the operation of the peach orchard. Within 8 years, through the joint labor of the petitioners, together with their mother and their defendant brothers, the debts of the father were paid from the profits on peaches and cotton grown on the land, and R. A. Harris, as administrator, was issued letters of dismission by the ordinary. The petitioners had the uttermost confidence in R. A. Harris, and were perfectly satisfied for the deeds to the 200 acres to remain in him. The mother maintained the home place, and the petitioners together with their defendant brothers were in possession. In 1929, R. A. Harris was married to Eva Harris, and brought his bride to the family homestead. She became a part of the family, and was told of the covenant that the children had made among themselves and of the long years of toil that each of them had performed, and that the agreement had been faithfully carried out by each brother and sister together with their mother. The agreement was fully performed by the fall of 1930. After all the debts were paid and the covenant was fully performed, four of the children moved off of the home place. The petitioners' mother together with the remaining children continued to live on the property. R. A. Harris managed the financial operations of the farm until November, 1943, when he died suddenly with a heart attack. The petitioners did not at any time between 1930, when R. A. Harris was dismissed as administrator, until his death in November, 1943, ever ask for an accounting because they realized that the operation of a peach orchard was a hazardous business, and they knew that he would have made a prompt accounting if there had been any profits above operating expenses. After the death of R. A. Harris, his widow, Mrs. Eva Harris, as his personal representative and individually as his sole heir at law, claimed to own the fee-simple title in the 200 acres. She wrongfully assumed control of the property, and in 1944 harvested an abundant peach crop for which she received, together with other crops, a net profit of approximately $30,000. She has never accounted to the petitioners for their pro-rata share of the profits or rents, and is indebted to them in a sum equal to 5/9 of all net profits or rents received during 1944. No overt act in violation of the petitioners' rights occurred until after the death of R. A. Harris. On July 28, 1944, Mrs. Eva Harris executed a warranty deed conveying 100 acres of the land in question, together with other land, to the defendants, H. G. Harris and J. T. Harris, and took from the grantees a security deed. The recited consideration was $25,000. Eva Harris had a lawful claim to only a 1/9 undivided interest in the 200 acres, and the above conveyances were fraudulent acts with the intent to deprive the petitioners of their title in the property. The petitioners have no adequate remedy at law, and it is necessary that a court of equity intervene in order to avoid a multiplicity of actions. There is a large and valuable peach orchard growing on the property, and the petitioners will suffer irreparable injury unless a receiver is appointed. The prayers are for process, injunction, cancellation, an accounting for rents and profits, appointment of a receiver, and a decree of title in the petitioners as their interests may appear.
The defendants, H. G. Harris and J. T. Harris, demurred to the petition as amended on general and special grounds. The defendant, Mrs. R. A. Harris, individually and as personal representative of R. A. Harris, deceased, demurred to the petition as amended on substantially the same grounds as were urged by the other two defendants, and also on two additional grounds of special demurrer, all of which grounds will be hereafter discussed in the opinion. The defendants, in two separate bills of exceptions, assigned error upon judgments overruling their demurrers to the petition as amended. These two cases will be considered together.
1. "Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action." Code, § 37-1007. "There is no misjoinder of parties or of causes of action, even if the petition concerns things of a different nature against several defendants whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case." Goodroe v. C. L. C. Thomas Warehouse, 185 Ga. 399 (2) ( 195 S.E. 199). Applying the above principles, the trial court did not err in overruling the demurrers to the petition as amended, filed by all the defendants, on the grounds of misjoinder (a) of parties defendant, and (b) of causes of action; or as being multifarious, since the petition, although filed by several plaintiffs against several defendants, related to matters of the same nature, forming a connected series of acts in all of which the defendants were more or less concerned. Briarcliff Inc. v. Kelley, 198 Ga. 390 (1) ( 31 S.E.2d 586). Furthermore, there is no misjoinder of parties defendant, for the reason that one of the defendants is the grantor and the other two defendants are grantees in one of the deeds sought to be set aside. "Where an equitable petition is brought to set aside a conveyance on the ground of fraud, or for other reason, the grantee in the conveyance is a necessary party." Hermann v. Mobley, 172 Ga. 380 (6) ( 158 S.E. 38).
The petition in this case is not subject to demurrer on the ground of duplicity. "Duplicity in pleading on the part of a plaintiff consists, not in asserting a right to and praying for relief inappropriate to the cause of action set forth in his petition, but in making therein equivocal statements with a view to getting the benefit of two or more inconsistent theories as to his right to recover, or in basing his complaint upon different versions with respect to the facts which gave rise thereto." Orr v. Cooledge, 117 Ga. 195 (3) ( 43 S.E. 527); Smith v. McWhorter, 173 Ga. 255 (3) ( 160 S.E. 250); Phillips v. Hightower, 190 Ga. 785 (1) ( 10 S.E.2d 854); Allen v. Allen, 196 Ga. 736 (4), 745 ( 27 S.E.2d 679). The petition in the present case was based upon a consistent statement of a single set of facts. The point in issue is the ownership of the Harris home place. The subject-matter of the suit never goes beyond ownership of the land. The accounting asked for by the petitioners is for profits made on the land by the defendant, Mrs. R. A. Harris, who under the allegations in the petition sold 100 acres of the Harris home place to the defendants, H. G. Harris and J. T. Harris.
The allegations of the petition as amended to the effect, that (a) Mrs. R. A. Harris, having wrongfully taken charge of the Harris home place, operated the peach orchard during the year 1944, and received a net profit of approximately $30,000; (b) she has never accounted to the petitioners for their pro-rata share of the profits, and is indebted to them in a sum equal to five-ninths of all net profits received by her from crops grown on the lands during the year 1944; and (c) the petitioners pray that she be required to make an accounting for profits from the peach orchard for the year 1944, were not subject to demurrer as contended on the grounds that such allegations are irrelevant, immaterial to the issues in the case, prejudicial to the defendants, and that they together with other allegations do not set forth any cause of action against the defendants. It is alleged that the petitioners are tenants in common with their mother and the defendants. "Every tenant in common shall have the right to possess the joint property, and as long as he occupies no greater portion of it than his own share would be on division, . . he shall not be liable to account for rent to his cotenant; but if he receives any rent or other profit, . . or if he by any means deprives his cotenant of the use of his fair proportion of the property, or if he appropriates all to his exclusive use, . . he shall be liable to account to his cotenant." Code, § 85-1003.
2. Trusts are implied "1. Whenever the legal title is in one person, but the beneficial interest, either from the payment of the purchase-money or other circumstances, is either wholly or partially in another." Code, § 108-106. "Constructive trusts are such as are raised by equity in respect of property which has been acquired by fraud, or where, though acquired originally without fraud, it is against equity that it should be retained by him who holds it." O'Neal v. O'Neal, 176 Ga. 418 (2) ( 168 S.E. 262); Murray County v. Pickering, 196 Ga. 208 (2) ( 26 S.E.2d 287). A constructive trust is "not created by any words either expressly or impliedly evincing a direct intention to create a trust, but by the construction of equity in order to satisfy the demands of justice." 65 C. J. 223, § 14. However, "If, from all the facts and circumstances, an implied trust is otherwise established, it is not destroyed by an express verbal agreement which may have constituted a part of the transaction." Hudson v. Evans, 198 Ga. 775 (2b) ( 32 S.E.2d 793).
The allegations of the petition were sufficient to allege the creation of a constructive trust. Accordingly, the petition as amended was not subject to demurrer on the ground that the averments were insufficient to set forth any right of action either in law or in equity. Swift v. Nevius, 138 Ga. 229 (2) ( 75 S.E. 8); Jackson v. Jackson, 150 Ga. 544 ( 104 S.E. 236); Parlin v. McClure, 169 Ga. 576 ( 150 S.E. 835); Romano v. Finley, 172 Ga. 366 (2) ( 157 S.E. 669); Hemphill v. Hemphill, 176 Ga. 585 ( 168 S.E. 878).
3. As to the statute of limitations applicable to this petition — the allegations show that the oral agreement to work the peach orchard, and from the proceeds thereof to pay the debt of the deceased father, was entered into between the mother and children in September, 1922; that the agreement was fully performed by the fall of 1930; that the mother and some of the children remained in possession and continued to work the orchard until the oldest child died suddenly with heart attack in November, 1943; that no accounting was asked up to this time because all of the petitioners had the utmost confidence in the oldest child and realized that the operation of a peach orchard was a hazardous business; and that the first assertion or claim of the defendant, Mrs. R. A. Harris, that she was not holding the property as trustee of the petitioners, and that she was holding it as her own, was after the death of the oldest child, to wit, in November, 1943. The petition was filed in October, 1944.
The Code, § 3-709, declares: "All actions against executors, administrators, guardians, or trustees, except on their bonds, shall be brought within 10 years after the right of action shall have accrued." In O'Neal v. O'Neal, 176 Ga. 418 (supra), this court held "that this law applies to constructive trusts." In Citizens Southern National Bank v. Ellis, 171 Ga. 717, 731 ( 156 S.E. 603), it was held: "As long as a person who is in possession of the property of another, using the same for the owner's benefit, recognizes the latter's ownership, no lapse of time will bar the owner from asserting his title as against the person in possession. Before any lapse of time will be a bar to the owner, it must appear that the person in possession has given notice, or there must be circumstances shown which would be equivalent to notice to the owner that the person in possession claims adversely to him. In such a case the statute will begin to run from the date of such notice. Until the owner has such notice, he has the right to treat the possession of the other person as his own." Murray County v. Pickering, 196 Ga. 208, 217 (supra). It has also been held that there is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case has to be determined according to its own particular circumstances. Miller v. Everett, 192 Ga. 26, 34 ( 14 S.E.2d 449); Hughes v. Cobb, 195 Ga. 213 (3) ( 23 S.E.2d 701). Applying the above principles, the petition as amended was not subject to demurrer on the grounds that the allegations show that the claims asserted by the petitioners were barred by (1) the statute of limitations, or (2) laches. See also Manning v. Manning, 135 Ga. 597 ( 69 S.E. 1126); Wallace v. Mize, 153 Ga. 374 ( 112 S.E. 724); Parlin v. McClure, 169 Ga. 576 (supra).
4. While insolvency of the defendants is not alleged, such an averment is not necessary to obtain injunctive relief where the petitioners allege that they are without an adequate remedy at law and that an injunction is necessary to avoid a multiplicity of suits. Code, § 37-1501; Mayer v. Coley, 80 Ga. 207 ( 7 S.E. 164); Burns v. Hale, 162 Ga. 336 (3) ( 133 S.E. 857); Pullen v. General American Credits Inc., 186 Ga. 642 ( 198 S.E. 747); Groover v. Brandon, 200 Ga. 153 ( 36 S.E.2d 84).
5. There was no demurrer which sought to strike the prayer for a receiver, and it does not appear from the record that the trial judge ruled on the question whether the petitioners were entitled to this relief. Since no ground of demurrer sought to strike such prayer, and it does not appear that the trial judge ruled on this question, it is unnecessary to determine whether or not the petitioners were entitled to the appointment of a receiver.
Judgments affirmed. All the Justices concur.