Copelan v. Monfort , 153 Ga. 558 ( 1922 )

Hill, J.

(After stating the foregoing facts.)

1. The petition in this case was brought in two counts. Demurrers were filed to both.. The first and eighth grounds of the demurrer raised the question as to whether the petition sets out an equitable cause of action. We are of the opinion that both counts set out a good cause of action. In Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773), it was held that “ A parol obligation by a person to adopt the child of another as his own, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years and during the obligor’s life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled as a child to the property of the obligor, undisposed of by will.” The principle ruled in the Grawford case has been approved in the folloAving cases: Heery v. Heery, 144 Ga. 467 (87 S. E. 472); Lansdell v. Lansdell, 144 Ga. 571 (87 S. E. 782); Rahn v. Hamilton, 144 Ga. 644 (87 S. E. 1061) Richardson v. Cade, 150 Ga. 535 (104 S. E. 207); Bell v. Elrod, 150 Ga. 709 (105 S. E. 241). The plaintiff seeks, in the first count of the petition, to have decreed to her one half of the estate of Mrs. Sallie A. Kimbrough who died intestate, which property was either in the possession of the administrators of A. A. Kimbrough, the sole heir at law of Mrs. Sallie A. Kimbrough, or in the estate claimed by them as belonging to the estate of A. A. Kimbrough, and which they claim should be administered as such, the property left by Mrs. Sallie A. Kimbrough and by her son, A. A. Kimbrough, as the sole heir of his mother. It is alleged in the petition' that there are no debts against the estate of Mrs. Kimbrough and no administration has been had upon her estate, and that the plaintiff entered into joint possession with A. A. Kimbrough of all the property, one half of which was her own; and that while, after the death of Mrs. Kimbrough, A. A. Kimbrough had the exclusive management of the property, it was with plaintiff’s consent. It was also alleged that plaintiff’s right to a recovery of the property arose from a virtual adoption of her by her aunt, Mrs. Kimbrough, as set out in the foregoing-statement of facts; and that on account of the contract and agreement and conduct on the part of A. A. Kimbrough she had a perfect equity in the property, and that she inherited equally with A. A. Kimbrough from the latter’s mother, who had virtually adopted her, and that A. A- Kimbrough acknowledged this status and right to a half interest in the property sued for up to the time of his death.

2. It is contended on the part of the plaintiffs in error that the plaintiff has no right to maintain the suit; that the plaintiff in this ease is a coadministrator upon the estate of A. A. Kimbrough; that she occupies a position of trust'towards the estate; and that, being an administrator herself, she can not sue her co-administrators. In MacDougall v. National Bank of Columbus, 150 Ga. 579 (104 S. E. 630), it was held: “Where a married woman sued her husband and another holding under him, to cancel deeds executed by the woman to the husband and by him to his transferees, and pending the action the husband died leaving a will in which his wife (plaintiff) and another were named as executors, and the will was duly probated, and the executors qualified, and afterward the death of the husband was suggested of record and the executrix (plaintiff) was made a party defendant, and thereafter her codefendant moved to dismiss the action upon the ground that the executrix could not be both plaintiff and defendant, and thereupon the plaintiff moved to strike the name of the executrix as party defendant and substitute in her place the name of her coexecutor as one of the parties defendant in the case, Held: The suit being in equity, and the general rule at common law not applying, the court erred in disallowing the amendment offered by the plaintiff, and in dismissing the case.” In the present case the plaintiff brought her suit as an individual in equity against her coadministrators as defendants; and we are of the opinion that under the facts of this case she could do so.

3. The fourth and seventh grounds of the demurrer to the first count of the petition raise the contention that it is demurrable because of nonjoinder of parties; that the parties to the suit should be the father of the plaintiff and the administrators of Mrs. Sallie A. Kimbrough, between whom the contract of adoption was alleged to have been made. We do not think that these grounds of the demurrer are tenable. Under the allegations of the petition there was a virtual, though not a statutory adoption of the plaintiff by Mrs. Kimbrough; and the father was not a necessary party to the petition, nor the administrators of Mrs. Kimbrough’s estate. Lansdell v. Lansdell, supra. In the Crawford case; supra, it was also held that “ Such an equitable suit is maintainable by the child in her own name against the administrators of the obligor.” In those cases the suit was against the representative of the deceased who had made the contract of adoption. In the present ease the. suit is against the administrators of A. A. Kimbrough, who was the sole heir at law of his mother, with whom the contract of adoption was made, and all of her property left undisposed of at the time of her death is claimed by the defendant-administrators of A. A. Kimbrough. The contest here is not between representatives of Mrs. Kimbrough and any other person; and the whole controversy is whether the property sued for is that of the plaintiff, or whether it is that of the estate of A. A. Kimbrough. In Belt v. Lazenby, 126 Ga. 767 (5) (56 S. E. 81), it was held: “An agreement to devise, if founded upon sufficient consideration, is, after death of the party who agreed to devise, enforceaffie against his sole heir at law, by treating the heir as a trustee and compelling him to convey the property in accordance with the contract; and where the agreement is entire and embraces both real and personal property, and the estate of the decedent is unrepresented and owes no debts, and the heir is in possession of all of such property, it is not necessary, in order to enforce the contract in its entirety, to have an administrator for such estate appointed and made a party to the suit. In such a case, equity, having obtained jurisdiction over the subject-matter and over the heir for the purpose of enforcing the contract as to the land against him, may enforce the whole of the contract against him.” And see Landrum v. Rivers, 148 Ga. 774, 792 (98 S. E. 477). We are of the opinion that the ruling in the Bell case is applicable here. The allegations of the petition, which are to be taken as true on demurrer, allege a sufficient consideration to support the promise in this case. The plaintiff left the home of her father and mother while she was a minor, and lived with her aunt as an adopted child as long as the aunt was in life, performing such services as an own child would. The contract is entire, and it embraces the real estate involved in this case, which is definitely described; the estate of the decedent is unrepresented and owes no debts; the plaintiff is in possession of the propertjq and has been since the death of Mrs. Kimbrough as joint owner with A. A. Kimbrough until his death; and therefore we are of the opinion that the plaintiff, according to the allegations of the petition, has a perfect equity which can be enforced in the manner set out in the two counts of her petition. See Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245).

4. Grounds two and three of the demurrer raise the question of the suit being barred by the statute of limitations and by laches. We are of the opinion that these grounds of the demurrer are without merit. “ Laches will not be imputed to one in peaceable possession of property, for delay in resorting to a court of equity to establish his right to the legal title.” Especially is this true where there is no assertion of adverse claim of title, and no fact or circumstance to put plaintiff on notice of such claim. Pavlovski v. Klassing, 134 Ga. 704 (3), 709 (68 S. E. 511). The petition expressly alleges that the plaintiff was in possession of the property all the time, and she did not have to sue until her possession was disturbed. When, therefore, her coadministrators obtained an order to sell the property and were proceeding to sell, she promptly filed her claim, according to the allegations of the petition, and brought this suit within the statutory period to enjoin such sale. Under such circumstances it can not be held that the plaintiff is barred either by the statute of limitations, or by laches, from bringing the present suit.

5. Another ground of the demurrer (6) alleges that the allegations of the petition make two suits based upon two separate contracts, which show upon their faces that they were made between separate and distinct parties. Reference has already been made to grounds four and seven of the demurrer, which raise substantially the same question. Even if this be true, both causes of action are between the same parties and both suits are ex contractu. In Cooper v. Portner Brewing Co., 112 Ga. 894, 900 (38 S. E. 91), it was said: “While it is permissible for the plaintiff to embrace in his petition as many different counts as he may see proper, provided all of the counts set forth causes of action of a similar nature, i. e., all ex delicto or all ex contractu, each count must set forth a perfect cause of action.” As stated above, both causes of action here are ex contractu and are between the same parties, and the petition sets out a good cause of action. The rights of the plaintiff and the rights of the intestate under both contracts set out in the petition are so intermingled that the petition is not open to the criticism that it is multifarious, and the entire question can be decided in one action.

In what has been said above we are not unmindful of the rule that where a parol contract is entered into between two persons, in consideration of services to be performed by one of the parties, that the other will, by deed, will, or otherwise convey certain property to the other party to the contract, equity will specifically enforce the contract “ if it be definite and specific, based upon sxtificient legal consideration, and the proof of the contract be strong, clear, and satisfactory.” Bird v. Trapnell, 149 Ga. 767, 770 (102 S. E. 131); Pair v. Pair, 147 Ga. 754 (95 S. E. 295).

We are of the opinion that each count of the petition in this •case comes up to the rule laid down in the cases above cited, and that it sets forth an equitable cause of action against the defendants; and therefore that the court did not err in overruling the demurrers filed thereto.

■Judgment affirmed.

All the -Justices concur.