1. Where, in a county other than where land is located, an action is brought for a recovery of the land, and for equitable relief, such as to set aside a judgment of probate or to cancel a deed which is a cloud on title, and the petition shows on its face that, in order for the plaintiff to recover, it is necessary such equitable relief be accorded, the suit is not one in ejectment, but equitable in character, and the right to maintain the action is dependent upon the right to the equitable relief prayed.
2. An equitable petition to set aside a judgment of a court of competent jurisdiction must show by its averments some good and sufficient reason why it should be granted. A petition failing to show the court in which the judgment was rendered, who the parties were, what issues were made, how they were finally determined, and for what reason the judgment is void, is wholly lacking in necessary allegations and presents no issue for determination by the court.
3. A suit in equity for the cancellation of a deed as a cloud on title must be brought within seven years from the date of the assertion of the void title which is apparently good. Equity follows the law, and will never close her doors against the true owner of land seeking its recovery, when the complaint is made within a less time than that in which prescription could have ripened, and where no special circumstances appear demanding an earlier application.
No. 15355. JANUARY 16, 1946. *Page 290 On July 20, 1945, George Shaw Hanleiter filed, in the Superior Court of Walton County, an action against W. B. Spearman and Mrs. W. B. Spearman, his son-in-law and daughter respectively. His petition alleged substantially as follows: William Cox, of Morgan County, died in 1856 leaving two daughters, namely: Victoria V. Cox, age 17; and Minnie Cox, age 2. Victoria V. Cox married James F. Hanson. Soon after the marriage of Hanson and Victoria V. Cox, he was appointed guardian of Minnie Cox, and received, as property belonging to his ward, 1000 acres of land in Morgan County and $22,000 in gold. In 1876 Minnie Cox married Dr. G. P. Bass, of Elberton, Georgia, who died some ten months later, and from whose estate she received an additional $15,000, which was turned over to Hanson, her guardian. Prior to 1882 the plaintiff married Minnie Cox Bass. Hanson, the guardian, used the property of his ward in the purchase of land in Morgan County, title to which was taken in the name of his wife, Victoria V. Hanson. James F. Hanson died in 1882, due to his ward (then the wife of the plaintiff) more than $40,000 as principal, besides interest on the same for a number of years. Victoria V. Hanson, in settlement of the amount due by Hanson to his ward, Minnie Cox Hanleiter in 1882 conveyed 1472 acres of land to her and to the plaintiff; with a provision in her deed that full title to the land conveyed would vest absolutely in the surviving grantee; and with an oral reservation, to which the grantees consented, that the grantor and her daughter, Mrs. Jessie Hanson Ballard, might live on the property and use so much of the income therefrom as would be necessary for their support during the natural life of each, sending to the plaintiff and his wife the overplus in the nature of rents, which they have done several times since the deed and oral agreement were made. The plaintiff and his wife, at the time of the delivery of the deed from Mrs. Hanson, moved on the land conveyed and into the main dwelling house, which was then occupied by Mrs. Hanson and her daughter, Mrs. Ballard, and lived there through the years 1882, 1883, 1884, and 1885 when the plaintiff accepted a mission assignment. However, the east room in the dwelling was retained by him and his wife, their furniture was stored therein until 1941, and the *Page 291 same was considered by them as their home. In 1941 the plaintiff was living on said land when the defendants took out an eviction warrant, and he voluntarily left the premises rather than litigate with them. During his absence, and prior to 1935, the defendant, Mrs. Spearman, had a key to his room, in which his trunk was stored, and she opened his trunk and removed therefrom the deed from Mrs. Hanson to the plaintiff and his wife, and now has the same in her possession or has destroyed it. Mrs. Hanson died testate, a copy of her will being attached to his petition. From 1913 to 1933, litigation was pending concerning the will, which was finally probated after the death of her daughter, Mrs. Ballard, and after the executors of Mrs. Ballard's estate had been made parties to the litigation. The will of Mrs. Hanson clearly devised to Mrs. Ballard 500 acres of the land claimed by the plaintiff under the unrecorded deed from Mrs. Hanson; and, if the will should be construed as disposing of the entire tract covered by the Hanson deed of 1882, then it was all given to Mrs. Ballard, and there was no interest in the same for administration by the representative of Mrs. Hanson's estate, and the appointment of an administrator with the will annexed was a nullity and void. Both Mrs. Hanson and her daughter, Mrs. Ballard, recognized that the plaintiff was the owner of the land in question by making no disposition of the same in their wills. The probate of Mrs. Hanson's will was a nullity, and the attempted probate grew out of a conspiracy of the defendants to obtain color of title for the land he owned. In furtherance of their fraudulent scheme to get paper title to his land, after Mrs. Spearman, one of the defendants, had destroyed his unrecorded deed, the other defendant, W. B. Spearman, while acting as administrator with the will annexed of the estate of Mrs. Hanson, obtained an order from the court of ordinary of Morgan County for the sale of 972 acres of the land included in the Hanson deed, and after advertisement sold the land at public outcry to his stepdaughter, Mrs. Jessie V. Sheppard, for $5175, which was never actually paid to him. At the time of sale, the land was worth from $30,000 to $40,000. Others declined to bid at his sale because they knew that the lands offered for sale belonged to the plaintiff. Mrs. Sheppard immediately reconveyed the land to the defendant, W. B. Spearman. The other 500 acres included in his deed is the land which was referred to in the will *Page 292 of Mrs. Hanson, and which the defendant, Mrs. Spearman, claims as an heir at law of her mother, Minnie Hanleiter, and which was turned over to her in the administration of the estate of Mrs. Hanson. The plaintiff, as the survivor of his wife, Minnie Hanleiter, is the rightful owner both of the 500-acre tract referred to in the will of Mrs. Hanson and the 972-acre tract sold by the representative of Mrs. Hanson's estate. The plaintiff as alleged, has no remedy except in a court of equity. He attached to his petition a copy of the will of Mrs. Hanson, dated June 21, 1909. By item one of her will she made this devise: "I give my daughter, Jessie Hanson, everything of which I die possessed, but in case of her death I give Minnie Hanleiter my house and grounds with 500 acres of land adjoining." The next ten items of the will are various special legacies to different persons. Item 12 is: "The remainder of my property I wish sold to the very best advantage possible and the money given to the Orphan's Home at Decatur, Georgia." No copy of the proceedings for the probate of this will is attached, and the petition nowhere sets out who the parties were, except by an allegation that the executors of Mrs. Ballard's estate were made parties. While it is alleged that litigation concerning the will of Mrs. Hanson lasted twenty years, no averment is made as to what the issues were, in what court such litigation pended, who the parties were, or how the litigation finally terminated. However, paragraph 20 of the petition alleges: "which said 500 acres of land the defendant, Mrs. Spearman, claims under and by virtue of her being the daughter of Minnie Hanleiter, referred to in said will, and in the purported administration that followed said 500 acres of land was turned over to her." A copy of the will of Mrs. Jessie Ballard, dated May 3, 1933, was attached to the petition. Item 3 of her will is: "I give, devise, and bequeath to Mrs. Spearman and her two daughters, Jessie V. and Callie, the 95 acres of land I own lying northwest of my house. It is understood that Mrs. Spearman will receive the house place together with 500 acres of land under my mother's will on my death." This will of Mrs. Ballard was probated on July 15, 1933. A copy of the deed from W. B. Spearman, administrator with the will annexed of the estate of Mrs. Hanson, dated July 18, 1935, conveying 972 acres as a part of the Victoria V. Hanson lands to Jessie V. Sheppard, was also attached to the petition. *Page 293
The prayers were: (1) That the defendants be enjoined from any transfer of their paper title to said lands; (2) that they be required to produce in court the deeds and all papers belonging to the plaintiff, taken by them as set out in the petition; (3) that all proceedings setting up said purported will of Victoria V. Hanson be set aside, and all sales of said lands vesting title in the defendants be declared void, and the deed from W. B. Spearman, administrator of Victoria V. Hanson, to himself be canceled as void and as a cloud on the plaintiff's title; (4) that a rule nisi issue directed to the defendants, requiring them to be and appear at a time and place named therein to show cause why said titles and possession of the lands described in the deed from W. B. Spearman, administrator with the will annexed of the estate of Victoria V. Hanson, to Jessie V. Sheppard, should not be canceled, voided, and nullified, and why a decree should not be entered setting up title to said lands in the plaintiff; (5) that the plaintiff have such other and further relief as may be necessary in the premises, to the end that equity may be done; and (6) that process issue.
The defendants filed joint demurrers, both general and special, the grounds of general demurrer being: (1) That no cause of action is set forth in the petition, and the allegations of the petition show that the plaintiff is barred at law and in equity; (2) that the claim as set out in the petition is stale, and there are no sufficient allegations to take his claim out of the rule, both at law and in equity; and (3) that the allegations of the petition show a good and valid title to the lands sued for in the defendants, by prescription as well as by the terms of the deeds under which they hold title. There were eight grounds of special demurrer, which were not passed on by the court. The general demurrer was sustained and the case dismissed. To the sustaining of the general demurrer the plaintiff excepted. 1. Equity cases shall be tried in the county where a defendant against whom substantial relief is prayed resides. Code, § 2-4303. All suits respecting title to land shall be tried in the superior court of the county wherein the land lies. Section 3-203. One test as *Page 294 to whether a suit to recover land is simply one of ejectment, and is a case "respecting title to land," is whether the plaintiff can recover on his title alone, or whether he must ask the aid of a court of equity in order to recover. If the allegations are sufficient to show that the plaintiff can recover on his title alone without the aid of a court of equity, the case is one of ejectment or complaint for land. But if this is not the case, and equitable aid is necessary and asked, the petition is equitable in character. The equitable relief sought against both of the defendants in the instant case is a decree setting aside a judgment, rendered in 1933, probating the will of Mrs. Victoria V. Hanson, who died in Morgan County, under which judgment one of the defendants received 500 acres of the land here sought to be recovered; and also, to cancel a deed, dated January 18, 1935, from W. B. Spearman, administrator with the will annexed of Mrs. Victoria V. Hanson, to Jessie V. Sheppard, conveying 972 acres of the land now claimed by the plaintiff, and a deed, from Jessie V. Sheppard to W. B. Spearman, reconveying the same land, dated "immediately" after the deed from Spearman, administrator, to Sheppard. Such equitable relief must necessarily be accorded before the plaintiff can recover the described land, and a right to maintain his case for that purpose is necessary to give the Superior Court of Walton County jurisdiction. The suit to this extent was equitable in character and was properly brought in the Superior Court of Walton County, regardless of whether or not the additional prayer for a decree of title was properly addressed to that court.
(a) 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 opposite party. Code, § 37-219. Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it, by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part. Section 37-220. There is attached to the plaintiff's petition a copy of the will of Mrs. Victoria V. Hanson, dated June 21, 1909, which was filed for probate in 1913, and finally probated in 1933; but no copy of the probate proceeding is attached, and nowhere in the petition are any facts alleged which would give a *Page 295 court of equity any jurisdiction to set aside the judgment of probate. The only allegation attacking the validity of the judgment is that "the alleged probate grew out of a conspiracy between the defendants in order to endeavor to obtain color of title to the land hereinafter referred to." This averment, whether a mere conclusion or not, was insufficient to show any equitable reason why the judgment complained of should be set aside. The petition is wholly wanting in essential averments concerning the litigation which resulted in the judgment sought to be set aside. In fact, it can not be ascertained from the petition, or any exhibit, what court rendered the judgment, who the parties were, what issues were made, and what matters were finally adjudicated. Without these necessary averments, the court was utterly unable to determine whether or not the plaintiff had any sufficient cause for setting the judgment aside. The petition, so wanting in necessary allegations, presented no issue for determination with respect to the judgment complained of. It was, of course, incumbent on the plaintiff to show by proper pleadings some good and sufficient equitable reason why the judgment should be set aside, and his failure in this respect authorized the court to conclude that his claim was not meritorious. Jewell v. Martin, 121 Ga. 325 (48 S.E. 929). Moreover, had the petition contained the necessary averments to show a cause of action for setting aside the judgment in equity, this court has held, in Crane v. Stratton, 185 Ga. 234 (194 S.E. 182), that, where a complainant has negligently allowed three years to pass without seeking to set aside the judgment complained of equity will grant no relief. From what has been said, the petition failed to state any cause of action for setting aside the judgment of probate, and the court did not err for this reason in sustaining the general demurrer.
(b) The unrecorded deed under which the plaintiff asserts title was more than 63 years old when this suit was filed. So far as the record shows, he was absent from the property from 1885 to 1941, which is more than half a century. No principle is more firmly imbedded in our equitable jurisprudence than that which requires a suitor who seeks equitable relief to move with diligence and without delay. Limitations of actions apply equally to courts of law and equity, but, in addition, the courts may impose an equitable bar whenever, from lapse of time and laches of the complainant, *Page 296 it would be inequitable to allow a party to enforce his legal rights. Code, § 3-712. Equity follows the analogy of the law, and a plaintiff's right to cancel a cloud on his title will not be denied him when he applies within seven years after the assertion of the void title which is apparently good, and there are no special circumstances demanding an earlier application. Knox v.Yow, 91 Ga. 367 (5) (17 S.E. 654); Pierce v. MiddleGeorgia Land Lumber Co., 131 Ga. 99, 103 (61 S.E. 1114);Whittle v. Nottingham, 164 Ga. 155, 161 (138 S.E. 62);Harris v. Neuman, 179 Ga. 879, 883 (177 S.E. 698);Stephens v. Walker, 193 Ga. 330 (18 S.E.2d 537). Equity follows the law, and will never close her doors against the true owner of land seeking its recovery, when the complaint is made within a less time than that in which prescription could have ripened, and where no special circumstances appear demanding an earlier application. Pierce v. Middle Georgia Land LumberCo., supra; Stanley v. Reeves, 149 Ga. 151, 154 (99 S.E. 376). The deeds sought to be canceled as a cloud on title being more than ten years old at the time suit was filed, the petition failed to state a cause of action for their cancellation, and the court did not err in sustaining the general demurrer for this reason.
2. The petition having failed to state a cause of action for any of the equitable relief prayed, the court did not err, for any reason assigned, in sustaining the general demurrer and dismissing the case.
Judgment affirmed. All the Justices concur, except Jenkins,P. J., disqualified. Atkinson, J., concurs in the judgment.