The petition in this case, showing affirmatively that the plaintiffs were guilty of laches, was properly dismissed on general demurrer.
No. 15186. JUNE 7, 1945. The heirs at law of Jincey Wood (all her children) filed an equitable petition against H. F. Sears, which as amended alleged that at the time of the death of Jincey Wood, some time prior to October 5, 1926, she was the owner of a one-half undivided interest in described real estate; that she died intestate, "owing no debts that were not subsequently paid;" that there was no reason for the sale of the described real estate for the purpose of the payment of debts, and there was no demand on the part of the heirs for a sale of the property; that, prior to the death of Jincey Wood, the defendant had negotiated with her for the purchase of the property, the negotiations being instigated by the defendant and Daniel Wood, the husband of Jincey Wood, but the negotiations had failed because Jincey Wood did not desire to sell the property and refused to do so; that, after the death of Jincey Wood, Daniel Wood, the father of the plaintiffs and the owner of the other half interest in the property, procured the appointment of himself as administrator of the estate of Jincey Wood, and immediately thereafter entered into negotiations for the sale of the entire interest to the defendant; that the procurement of such appointment was not until after an agreement had been reached between Daniel Wood and the defendant, acting in fraud against the interest of the estate and the creditors and distributees, that Daniel Wood would sell and convey the entire interest in the property, including the half interest of the intestate, and other lands, in exchange for described lands (on which there was an outstanding deed to secure debt for $1000) and $2500 in cash.
It was further averred that, after his appointment as administrator, Daniel wood applied for and secured an order from the court of ordinary for the sale of the property, and in pursuance of the order, on October 5, 1926, he offered the property for sale at public outery, having in the meantime called upon one of the petitioners. Jincey Wood Johnson, and requested that she accompany him to the place of sale and bid for the interest of her mother in the land *Page 433 for the sum of $1000, which was a part of the fraudulent conspiracy previously charged; that the petitioner, Jincey Wood Johnson, "was then a single woman, somewhat unlettered and altogether subservient to the wishes of her father, and what she did at the premises was at his direction and instigation, and under his domination and influence," and for the purpose of carrying out the fraudulent collusion previously alleged, "but such purpose was to her at that time unknown and unsuspected;" that the petitioner, Jincey Wood Johnson, at the instigation and command of her father, made a bid of $1000 for the property and was thereafter advised that the bid had been accepted; that at the time of the sale the defendant and his attorney were present, and while the sale was made on October 5, 1926, no deed was executed until October 22, 1926, when the administrator caused the petitioner, Jincey Wood Johnson, to return with him to the office of the defendant's attorney, where three deeds had previously been prepared for execution — one from the administrator to the petitioner, Jincey Wood Johnson, reciting a consideration of $1000, conveying the half interest of the intestate; another from Jincey Wood Johnson to the defendant, conveying the same property, for a recited consideration of $1200; and another from Daniel Wood, individually, to the defendant, conveying his half interest in the property for a recited consideration of $3800; that the deeds were executed and were witnessed by the parties present, the witnesses including the defendant and his attorney; that no money was paid by the petitioner, Jincey Wood Johnson, for the deed from the administrator, and none was received by her for the deed to the defendant; that the sale was for the convenience of Daniel Wood, the administrator, and for the purpose of carrying out the conspiracy, which enabled the defendant to obtain color of title to the whole of the property described; that the warranty deed from the petitioner, Jincey Wood Johnson, to the defendant was made at the instance, request, and direction of Daniel Wood, and the petitioner received no part of the consideration mentioned in the deed, or other remuneration or thing of value, and the deed was made as a part of the fraudulent scheme to divest the estate of Jincey Wood of title to the property; that the entire transaction was part of a fraudulent scheme to deprive the petitioner, Jincey Wood Johnson, and her brothers and sisters, of their interest in their mother's estate, and did deprive them of their *Page 434 interest, and the defendant was a conspirator with their father in the transaction; that the purported sale was in legal effect a sale by the administrator to himself, and was therefore illegal and void, and the administrator's deed and the warranty deed to the defendant are clouds on the title of the property and should be canceled; that "Daniel Wood, the administrator of Jincey Wood, is dead, and there is no administrator of his estate;" that in pursuance of the fraudulent scheme of the defendant and Daniel Wood, the petitioners were "illegally deprived of the possession of their interest in the estate of their mother;" that the petitioners "were of immature age at the time of the transaction, placed implicit confidence in their father, and did not learn that it had been misplaced until after his death;" that the defendant has never been a bona fide claimant of the half interest in the property, and at all times since the transaction has had knowledge of the fraud practiced on the petitioners, having actually participated in the fraud, and he is not now entitled to plead laches; that the rents and profits of the half interest in the property amount to $500 per year. The plaintiffs prayed for: (a) an injunction, restraining the defendant from alienating or encumbering the title to the property; (b) cancellation of the deeds; (c) a judgment for mesne profits; and (d) a decree of title in the estate of Jincey Wood.
The defendant filed a general demurrer to the petition, which was renewed to the petition as amended, on the grounds, among others, that the petition set forth no cause of action; that the allegations show that the action is barred by the statute of limitations and laches; that no reason or justification for delay in filing suit for more than seven years from the date of the purchase of the property is alleged; that the allegations show no excuse for the failure to exercise ordinary care and diligence in ascertaining the petitioners' equities, if any; that no incapacity, by reason of mental weakness, age, or otherwise, is shown; and that the allegations are insufficient to show fraud. The general demurrer was sustained by the trial court, and the plaintiffs excepted. Passing over other questions raised by the general demurrer, we are of the opinion that the demurrer was properly sustained on the ground of laches. "Equity gives no relief *Page 435 to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Code, § 37-119. "While most frequently the bar of laches is applied in instances where the long delay has rendered the ascertainment of the truth difficult, the doctrine does not rest on that premise alone. As was well stated in Citizens Southern National Bank v. Ellis, 171 Ga. 717, 719 (156 S.E. 603): `In determining whether there has been laches, various things are to be considered, notably the duration of the delay in asserting the claim, the sufficiency of the excuse, if any, offered in extenuation thereof, whether during the delay the evidence of the matters in dispute has been lost or become obscure, whether plaintiff or defendant was in possession of the property in suit during the delay, whether the party charged with laches had an opportunity to act sooner, and whether he acted at the first opportunity; and the delay must not be such as to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, due to loss or obscuration of evidence of the transaction in issue, or where the lapse of time has been sufficient to create or justify a presumption against the existence or validity of the plaintiff's right, or to justify a presumption that, if the plaintiff was ever possessed of a right, it had been abandoned, waived, or satisfied.'" Bryan v.Willingham-Little Stone Co., 194 Ga. 563, 566 (22 S.E.2d 40).
The petition, construed most strongly against the plaintiffs, as should be done, shows possession of the property by the defendant for more than eighteen years. The petition does not allege possession in the plaintiffs. It alleges that "in pursuance of the scheme and fraudulent connivance of the defendant with the said Daniel Wood, these petitioners were illegally deprived of the possession of their interest in the estate of their mother." The petition alleges the value of rentals, and prays for mesne profits. Possession is shown in the defendant. See, in this connection, Doolittle v. Bagwell,199 Ga. 155 (33 S.E.2d 437); Hadaway v. Hadaway, 192 Ga. 265,271 (14 S.E.2d 874). "Long acquiescence or laches by parties out of possession is productive of much hardship and injustice to others, and can not be excused but by showing some actual hindrance or impediment caused by the fraud or concealment of the party in possession." Bryan v. Tate, 138 Ga. 321,323 *Page 436 (75 S.E. 205), and cit. The statement quoted is rather restrictive; and, though not committing ourselves to its soundness as embracing the only means of showing excuse for delay, we think it applicable in this case, for there is no showing of "actual . . hindrance or impediment caused by the fraud or concealment of the party in possession." Nor is any other excuse for delay offered. The petition does not disclose the ages of the plaintiffs. No minority is shown as an excuse for delay in bringing the action. If any excuse at all is offered, it is only that the parties at the time of the alleged fraudulent transaction were of immature years and had implicit confidence in their father. This is an insufficient excuse for eighteen years' delay in bringing their action against this defendant.
Assuming that the allegations of the petition make a case of fraud, the petitioners waited over eighteen years after the perpetration of the fraud before making an appeal to a court of equity for relief. During the whole of this period, one of the petitioners was fully aware of the circumstances surrounding the transaction. By the exercise of ordinary diligence, could not the others have apprised themselves of the fraud, if it had been committed? So far as the petition shows, they did soon afterward ascertain the nature of the transaction. Yet they unconscionably delayed action until after the death of their father, one of the alleged principal conspirators, thus probably causing an obscuration of evidence. Certainly the ascertainment of the truth is made more difficult. By amendment, the petition alleged that the fraud was not discovered until after the death of the petitioners' father. The date of his death is not shown. The date of discovery of the fraud is still indefinite. In Waters v.Waters, 124 Ga. 349, 353 (52 S.E. 425), this court said: "It does not appear at what time during that long period [26 years] the plaintiff discovered that she had been defrauded. Apparently nothing was done to prevent her from acquainting herself with the truth as to the legal effect of the so-called Preetorius mortgage. It was incumbent upon her, in filing her petition, to show that her cause of action was not barred. This was not done. Her pleadings must be construed most strongly against her; and therefore it will be presumed that she discovered the alleged fraud at such time in the past as that her right of action has expired by limitation." The petition in the instant case affirmatively *Page 437 showing that there has been unusual and unreasonable delay in bringing the action, it was incumbent upon the plaintiffs to show that they were not guilty of laches. This the petition fails to do. Moreover, even had the petition disclosed that the plaintiffs had no knowledge of the fraud until shortly prior to the institution of the suit, the petition fails to show that by the exercise of ordinary diligence the fraud could not have been sooner discovered. The petition shows no fraud or impediment on the part of the defendant or others which prevented earlier ascertainment of the fraudulent nature of the transaction; and the defendant is not charged with any conduct the effect of which was to debar or deter the plaintiffs from sooner bringing their action. How or when the fraud came to their knowledge is not shown. Why it did not sooner come to their knowledge is not shown. Not the slightest diligence is shown. In Bryan v.Tate, supra, this court held that the plaintiff's voluntary failure to bring suit for three years after being cognizant of the fraud committed in obtaining a deed seven years before that time is such laches as will bar the right of action. See alsoFuller v. Little, 59 Ga. 338; Kelly v. Walker, 91 Ga. 199 (17 S.E. 118); Etheredge v. Slayton, 94 Ga. 496 (19 S.E. 818); Griffin v. Stephens, 119 Ga. 138 (46 S.E. 66);McWhorter v. Cheney, 121 Ga. 541 (49 S.E. 603); Aken v.Bullard, 134 Ga. 665 (68 S.E. 482). The instant case is differentiated from Cowart v. Young, 74 Ga. 694, the principal case relied upon by counsel for the plaintiff in error. The Cowart case turned on the statute of limitations and not upon the question of laches. This court has many times held that laches operates independently of the statute of limitations.
No error was committed in sustaining the general demurrer.
Judgment affirmed. Bell, C. J., Jenkins, P. J., Duckworth andAtkinson, JJ., concur.