1. While an administrator is entitled to the possession of lands belonging to the estate for the purpose of paying debts and division, yet where there has been no administration, or the administrator consents thereto, the heirs may maintain an action for recovery of the lands belonging to the estate, and it is unnecessary for them to allege that the estate owes no debts.
2. Where possession of land is surrendered to a mortgagee, the mortgagor has ten years from the last recognition by the mortgagee of the mortgagor's right to redeem the land. Adverse possession under written evidence of title for a period of seven years will ripen into prescriptive title; but if the written title is procured by fraud, the possession thereunder will not ripen into prescriptive title. However, where one claiming such land delays for more than seven years the institution of a suit to cancel such evidence of title upon the ground that the deed is fraudulent, the proceedings to cancel are barred by limitation, and the petition should be dismissed on demurrer raising this question.
No. 15956. OCTOBER 16, 1947. Mrs. Mandy Mulligan, Carl Mulligan, J. A. Mulligan, Irene Mulligan, and W. T. Mulligan, as the sole heirs at law of A. S. Mulligan, deceased, filed a petition against W. H. Shirley and alleged the following: A. S. Mulligan is deceased and there is no administration on his estate, and the petitioners are all of his heirs at law, are sui juris, and have a right to sue in their own behalf. The deceased was the owner of a described eighty-acre tract of land, against which the defendant held a lien for $1979.30. In January, 1940, the deceased was in poor and feeble health, confined to his bed and under the constant care of a licensed physician, and was without mental capacity to transact business. While he was in this condition, the defendant approached the deceased with reference to extending the due date of his lien, and informed the deceased that, if he would sign certain papers which were made out and the contents of which were unknown to the deceased at the time, the defendant would be required to pay certain taxes, and that by signing such papers the right of redemption would not be affected, and the deceased would continue to have such right of redemption until such time as he could liquidate the lien. "The deceased later discovered that he had executed a warranty deed to the property in question." The warranty deed was obtained by fraud and wilful misrepresentations made with the design to *Page 747 deceive, and the defendant thereby practiced an actual fraud on the deceased in securing the warranty deed in the fraudulent manner "herein described." The consideration of the deed was wholly inadequate. The deed is invalid for the reason that it was procured by fraud and misrepresentations as alleged in the petition, and for the further reason that the equity of redemption of the deceased still existed. The defendant procured the warranty deed by the fraudulent means alleged for the sole and express purpose of gaining possession for an inadequate consideration at a time when the defendant recognized that the right of redemption still existed. "The defendant obtained possession of the lands herein described," and the petitioners' right of recovery is not barred. "They are entitled to mesne profits from the lands and tenements from the date herein alleged." The defendant should be required to give an accounting of the proceeds so derived, and the same should be applied on the amount due on the said lands. The petitioners are ready and willing and have offered to pay the defendant the amount due, which has been refused, and they now tender and offer to pay the amount due, this tender being continual. The prayers were for process, that the warranty deed referred to be canceled, with the equity of redemption decreed to be in the petitioners, and that the defendant account for the rents and profits derived from the lands described in the petition.
To this petition the defendant demurred upon the grounds: (1) the petition shows on its face that the cause of action attempted to be set forth is now barred by the statute of limitations; (2) the petition is fatally defective in that it fails to allege that there are no outstanding debts and no necessity for an administration, thus showing that the petitioners have no right to prosecute the action; (3) the petition shows that no fraud could have been perpetrated on the deceased if the deceased lacked the capacity to execute a deed, and the allegation that the deceased did not have mental capacity to transact business is too vague, indefinite, and uncertain to set forth a cause of action for lack of mental capacity to execute the deed; and (4) there is no allegation that the defendant is insolvent. All grounds of the demurrer were overruled, and the defendant excepts. 1. While an administrator is entitled to the possession of the lands for the purpose of paying debts and division, yet where there is no administration or if the administrator consents thereto, the heirs at law may take possession of the lands or may sue for them in their own right. Code, § 113-907. In such a suit by the heirs, it is necessary that the petition allege that there was no administration or that the administrator has been discharged before the suit was filed or that he consented to the bringing of such action by the heirs. Arnold v. Freeman,181 Ga. 654 (183 S.E. 811); Yerbey v. Chandler, 194 Ga. 263 (21 S.E.2d 636). It is not required in such an action that the petitioners allege that there are no debts against the estate. The ground of demurrer in the instant case, assailing the petition by the heirs at law for recovery of the land upon the ground that it contained no allegation that the estate owed no debts, is therefore without merit, and the court did not err in overruling the same.
2. Under the provisions of the Code, § 67-115, where the possession of property is surrendered to the mortgagee, the mortgagor may redeem the property at any time within ten years from the last recognition by the mortgagee of the mortgagor's right to redeem the property. If there was nothing more involved here than the right to redeem, the action would not be barred. However, the petition shows a conveyance by the mortgagor to the mortgagee by warranty deed in January, 1940, and possession by the grantee thereunder. These allegations make necessary a consideration of the principle of law embodied in the Code, § 85-407, providing that adverse possession under color of title for seven years shall ripen into title by prescription. The present suit was filed in May, 1947, which was more than seven years after the time the grantee took possession as shown by the petition. The petition seeks cancellation of the warranty deed because of alleged fraud in its procurement. The Code section last cited declares that, if such written title is fraudulent and notice of such fraud is brought home to the claimant or prescriber before or at the time of the commencement of his possession, no prescriptive title can be based thereon. This principle of law denying the benefit of prescriptive title to one holding possession fraudulently has been repeatedly declared by this court. Smith v. Donalson, 137 Ga. 465 (73 S.E. 577); *Page 749 Chattahoochee Fertilizer Co. v. Quinn, 169 Ga. 801 (151 S.E. 496); Quarterman v. Perry, 190 Ga. 275 (9 S.E.2d 61);Metropolitan Life Insurance Co. v. Hall, 191 Ga. 294 (12 S.E.2d 53). But one seeking to cancel a fraudulent deed is also subject to a time limit. By a long line of decisions of this court it is established beyond question that an action such as the present one, seeking the cancellation of an alleged fraudulent deed, must be brought within seven years from the time the fraud became known. Cade v. Burton, 35 Ga. 280; Knox v. Yow, 91 Ga. 367 (5) (17 S.E. 654); McWhorter v.Cheney, 121 Ga. 541 (49 S.E. 603); Pierce v. MiddleGeorgia Land Co., 131 Ga. 99 (61 S.E. 1114); Beasley v.Smith, 144 Ga. 377 (87 S.E. 293); Robinson v. Smith,159 Ga. 269 (125 S.E. 593); Stephens v. Walker, 193 Ga. 330 (18 S.E.2d 537); Slade v. Barber, 200 Ga. 405 (37 S.E.2d 143). The petition here does not make the specific allegation that the defendant went into possession of the land involved in January, 1940, the date of the deed sought to be canceled, but it does allege that the defendant took possession and seeks to recover mesne profits from the date therein, which was January, 1940, thus showing possession by the defendant for more than seven years and knowledge upon the part of the petitioners and their father, the grantor, of the facts alleged to constitute fraud. More than seven years having elapsed since the alleged fraud was committed and knowledge thereof by the grantor and his heirs, the petitioners, the above-referred-to limit of seven years is applicable, and the action is barred. Accordingly, the trial court erred in overruling the grounds of demurrer to the petition, which asserted that the action was barred.
Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.