1. The allegations of the petition as amended were sufficient to state a cause of action upon the theory that as between the plaintiffs and the defendant executor the title to the property was in the plaintiffs, subject only to a debt due by one of them to the testatrix, and that at the time of her death she held the possession merely as security; the plaintiffs offering to pay whatever balance was found to be due after an accounting by the executor for rents and profits.
(a) It did not appear that the petition was barred by laches, or by any statute of limitations invoked by the demurrer.
(b) The court properly overruled the demurrer on all grounds.
2. The evidence authorized the verdict in favor of the plaintiffs against the executor, as well as against other parties brought in as defendants at his instance.
3. There was no merit in any of the special grounds of the motion for new trial complaining of excerpts from the charge of the court as inapplicable or unwarranted. The judge did not err in refusing a new trial.
No. 13764. JUNE 14, 1941. John R. Aldridge and his daughter, Mrs. Bridges, filed a suit in equity against S. O. Smith as executor of Mrs. Nancy Isabel Brown, deceased. In their petition as several times amended, they sought cancellation, injunction, and a decree of title to land subject to whatever sum might be found to be due upon a loan alleged to have been obtained by Aldridge from the testatrix, after an accounting by the executor for rents and profits. The executor filed an answer and a demurrer. He also prayed that C. L. Davis and his wife, Lillie Davis, be made parties, since they claimed the land under the will of Mrs. Brown. Davis and his wife, who were made parties accordingly, filed an answer or intervention, asserting title under Mrs. Brown. They also adopted the answer and the demurrer filed by Smith as executor, and may be referred to herein as defendants. The demurrer to the petition as amended was overruled, and the defendants, the executor and the Davises, excepted pendente lite. The trial resulted in a verdict in favor of the plaintiffs for the land in controversy, subject to a liability for $500 against the plaintiffs and in favor of Smith, executor. A decree was entered accordingly. A motion for new trial was overruled, and the defendants excepted, assigning error on that judgment, and on the exceptions pendente lite.
The petition as amended alleged substantially the following: *Page 377 John R. Aldridge and his daughter, Mrs. Bridges, were the sole heirs at law of Mrs. Thelia Gray Aldridge, deceased wife and mother of the plaintiffs, who died in 1919, leaving considerable property, which was converted into cash. In 1920 Aldridge purchased from Mrs. E. C. Jones the land that is now in dispute, paying therefor $2000 which he and his daughter had inherited from his wife, and executing a note for $250 as the balance of the agreed purchase-price. A bond for title was executed and delivered to him by Mrs. Jones as the seller. Although the bond for title named Aldridge alone as obligee, he recognized that his daughter was equally interested with him as a purchaser, and for this reason she was made a party in the suit. He and his daughter immediately went into possession of the property under the bond for title, and remained in exclusive possession thereunder until 1929, when Mrs. Brown, a sister of Aldridge, came to live with them. Aldridge then borrowed from Mrs. Brown $600 with which to pay the balance of principal and interest which he owed on the purchase-price. At this time Mrs. Jones, the obligor in the bond for title, had died, and her estate had been divided among her heirs at law. Mrs. R. W. Tillman, a daughter of Mrs. Jones, took the note of Aldridge for the balance of the purchase-money as her part of her mother's estate. Aldridge paid the amount of the note to an uncle of Mrs. Tillman, who was her agent, and requested that a deed be made by Mrs. Tillman to him. By mistake, however, the deed was made to Mrs. Brown. It was the intention of Aldridge to execute a mortgage or security deed to Mrs. Brown for the amount which he borrowed from her, and the deed which she received from Mrs. Tillman is in truth and in equity a security deed; but it was finally alleged by amendment that Mrs. Tillman had no legal right to execute said deed to Mrs. Brown, for the reason that Mrs. Jones died intestate, leaving several heirs at law, and there was never any administration of her estate. For this reason, the deed from Mrs. Tillman to Mrs. Brown is a nullity and is a cloud on the title of the plaintiffs. It was further alleged that the defendant as executor had enjoyed the rents and profits of the land for four years next preceding the suit, which was filed on June 24, 1940, and that the use of the land was reasonably worth the sum of $150 per year. The plaintiffs prayed for cancellation of the deed from Mrs. Tillman to Mrs. Brown, for injunction to restrain alteration *Page 378 of the status with reference to the property, for an accounting for rents and profits, and for a decree of title in the plaintiffs, they offering to pay whatever sum might be determined to be due by them to the estate of Mrs. Brown, upon such accounting.
The demurrer to the petition was based upon two grounds: (1) No cause of action, either legal or equitable. (2) The petition shows on its face that the alleged right of action is barred by the statute of limitations, more than four years having elapsed after the right of action accrued and before institution of the suit; but it is argued in the brief that the action appeared also to be barred by laches. The answer of the executor was such as to place the burden of proof on the plaintiffs, but on the trial the contest was mainly between the plaintiffs on one side and C. L. Davis and his wife on the other. In the answer filed by these two parties, they alleged substantially the following: They moved into the home of Mrs. Nancy I. Brown, "situated on said farm," in February, 1933. The plaintiffs had previously lived in said home with Mrs. Brown, but moved out, leaving her sick and bedridden and unable to care for herself. Another family moved in and looked after her during the year 1932. Mrs. Davis being a niece of Mrs. Brown, she and her husband moved into the home with her for the purpose of supporting and taking care of her. Mrs. Brown was an aged woman, and, having fallen and broken her hip, had to be cared for as though she were an infant. These defendants lived with and took care of her, waited on her and nursed her for a period of thirty-nine months, that is, until her death in 1936. When the defendants went to live with Mrs. Brown they found the dwelling-house and the premises generally in a bad state of repair, and for repairs and improvements they spent $918.50. Also their services in nursing were of the value of $25 per month, or $975 for the whole period, making in all $1893.50, which represents the consideration these defendants paid for said land, and which is in excess of its value. Defendants did not seek to recover this sum, but claimed that the improvements were made and that services were rendered under an agreement with Mrs. Brown that she would execute a will leaving the property to them, and that she did so. "Defendants thereby became the owners of said property for value and without notice of any right, title, or interest of the plaintiff to said property." The answer of the executor stated that a copy of the will of Mrs. *Page 379 Brown was attached as an exhibit, but no such exhibit appears in the record; nor was any such will introduced in evidence. There was some indefinite testimony as to the existence of a will, and it might have been inferred that some such document had been executed and that Mr. and Mrs. Davis were named as beneficiaries in some way, but the evidence did not show definitely what property, if any, was bequeathed to them. The motion for new trial was based upon the general grounds, and on special grounds added by amendment, complaining of errors in the charge of the court. 1. The allegations of the petition were sufficient to show that, as between the parties, Aldridge and his daughter were the equitable owners of the property subject to a debt owed by Aldridge to the estate of the testatrix represented by the defendant executor. The plaintiffs went into possession of the property under bond for title from another, with most of the purchase-money paid, and had been in possession for a number of years before the testatrix ever had anything to do with it. In 1929 she came to live with the plaintiffs, and loaned to the plaintiff Aldridge a sum of money with which to pay the balance of the purchase-price. It does not appear how the plaintiffs happened to lose or give up possession, but the allegations do not show that they ever sold or conveyed their interest; and from the petition as a whole the only inference to be drawn is that the testatrix, Mrs. Brown, a sister and aunt of the plaintiffs, came to the place only at their invitation and later held the property under them, but with no other interest than as creditor. In this connection we do not consider the claim of Mr. and Mrs. Davis, since their claim did not appear except by the answer of the executor, and by the answer or intervention filed by them after they were made parties on suggestion of the executor. The petition as amended, having presented a case substantially as stated above, and having prayed to recover the land subject to payment of such balance of the debt as might be found to be due after an accounting for rents and profits, was not subject to general demurrer as failing to show such title or interest as would authorize a recovery. It appears from the petition that the testatrix had nothing more than a security deed, if that; and the most that could *Page 380 be said in her favor is that she was in possession as grantee in a security deed, and held the land subject to redemption by the debtor. Polhill v. Brown, 84 Ga. 338 (10) (10 S.E. 921);Marshall v. Pierce, 136 Ga. 543 (71 S.E. 893).
The petition did not show upon its face that it was barred by laches. Therefore it was not subject to demurrer on that ground, even assuming that the question of laches could be raised by general demurrer. Lee v. Holman, 184 Ga. 694 (4) (193 S.E. 68); Bleckley v. Bleckley, 189 Ga. 47 (12) (5 S.E.2d 206.) With respect to limitation by statute, clearly no four-year statute was applicable (Code, §§ 3-711, 3-706, 3-1002, 3-1003), and the demurrer does not refer to any statute providing a different period "Where on their face the pleadings show that a suit is barred by the statute of limitations, the defendant can take advantage of the statute by demurrer. But a demurrer in order to raise the defense of the statute of limitations, must expressly set out a reliance on the statute." Smith v. Centralof Georgia Railway Co., 146 Ga. 59 (90 S.E. 474). Assuming that the demurrer sufficiently invoked some four-year statute, yet since no statute fixing a four-year period is applicable, and no statute fixing a different period was referred to in any manner, the court did not err in overruling the demurrer.
2. The testimony of Aldridge, though contradicted by that of other witnesses, was, if believed by the jury, sufficient to support the material allegations of fact contained in the petition. He further testified that he and his daughter, who was joined as a plaintiff with him, lived on the land in question continuously from 1920 until 1932; that the sister, Mrs. Brown, came to live with them at their invitation, and about the same time he borrowed $600 as alleged in the petition, and used the money for the purpose therein stated; that Mrs. Brown had no other claim or interest in the land, except that he intended for her to have security; that his daughter married in 1932 and moved elsewhere, and that being unable himself to care for his sister, in that she needed a woman to nurse and look after her, he arranged for Mr. and Mrs. Howard to move into the house before he left. Continuing, he testified, that he arranged with Mr. and Mrs. Davis to take the place of the Howards in 1933. Mrs. Davis being a daughter of the witness by his first wife and a niece of Mrs. Brown; that they entered upon the *Page 381 premises as tenants under him, their services to Mrs. Brown to be in satisfaction of rent; that he paid the taxes on the premises until 1934, but he then told them that he "thought they ought to pay the tax on it, they were getting all the rents; that is the reason they paid the taxes" afterwards. He further testified that Mr. and Mrs. Davis at the time of entering upon the land knew of the existence of his bond for title and his interest in the property; and this was virtually admitted by Mrs. Davis, though denied by her husband. The witness did not learn that the Davises were asserting any claim to the property until after the death of Mrs. Brown, which according to the evidence occurred some time during the year 1936.
Mr. and Mrs. Davis testified in support of the allegations of their answer and intervention, except that no will was introduced, and there was no clear evidence of any devise of the land to them by Mrs. Brown. It is contended in the brief filed by their attorney that their rights were ignored by the jury, and that the verdict is a great injustice to them. However this may be, it was the exclusive province of the jury to determine the credibility of the witnesses, and they saw fit to believe Aldridge. If, as this witness testified, Davis and his wife entered into possession as his tenants, they could not assert title against him without restoring possession. Code, § 61-107. Still another view is that whether they entered as tenants or not, if they knew of the rights of Aldridge in the property at the time of their entry, as he testified, then any transaction they might have had with Mrs. Brown would have been subject to the claim of Aldridge, the evidence further authorizing the inference that Mrs. Brown herself entered under Aldridge and his daughter, and had no claim other than that of a creditor.
It is insisted for the plaintiffs in error that the verdict should be set aside, under the rule that where several plaintiffs jointly sue to recover land, alleging joint title, there could be no recovery unless they proved a joint title. Shaddix v.Watson, 130 Ga. 764 (61 S.E. 628). This contention is based upon the fact that the bond for title was made to Aldridge only, and no right to recover was shown in his daughter. There is no merit in this contention. In the first place, the petition did not allege joint title, but showed on its face that the bond for title was made only to Aldridge, and that be joined his daughter as a party plaintiff only because of her *Page 382 equitable interest therein. In the second place, the rule to which counsel refers is a common-law rule, and has no application in a case like the present, the suit being one in equity.
The verdict in favor of the plaintiffs, being supported by the evidence, can not be disturbed by this court under the general grounds of the motion for new trial.
3. In the brief for the plaintiffs in error only slight reference is made to the special grounds of the motion, in which complaint was made of several excerpts from the charge of the court. It is not complained that any portion of the charge contained an erroneous statement of law, the contention being simply that the several excerpts were inapplicable or unwarranted by the evidence. We think it is true that each charge was supported by the evidence, unless it be one relating to the assertion of prescriptive title by the plaintiffs; but even if this particular charge may have been inapplicable or unwarranted, it was clearly harmless under the facts appearing. The judge did not err in overruling the motion for new trial on all grounds.
Judgment affirmed. All the Justices concur.