Farnell v. Brady , 159 Ga. 209 ( 1924 )

Gilbert, J.

1. The court did not err in overruling the general and special demurrers to the petition.

2. “He who would have equity must do equity and give effect to all equitable rights in the other party respecting the subject-matter of the suit.” • Civil Code (1910), § 4521. Accordingly, as a general rule, a petition to a court of equity to cancel a contract representing the sale of property, where there is no return or offer to return the consideration, is demurrable. An exception to the general rule stated above is that “a party is not obliged to return that which he is entitled to retain,” as alleged in the petition in this case, to wit, that the petitioner was fraudulently induced to sell and transfer her interest in an estate to others interested therein, for a sum much less than the amount due her as one of the heirs. Treating the allegations of the petition as true for the purpose of considering the demurrer, the plaintiff is entitled to many times the amount received by her upon proper and just accounting and distribution of the. estate. Equity does not require the useless procedure upon the part of the plaintiff to return a part of her just proportion only to have it included in the larger sum due to her and which she seeks to recover. See Collier v. Collier, 137 Ca. 658 (3) (74 S. E. 275, Ann. Cas. 1913A, 1110); Taylor v. Colley, 138 Ca. 41 (4) (74 S. E. 694); Mann v. Showalter, 145 Ca. 269 (3), 274 (88 S. E. 968). Judgment affirmed.

No. 4425. October 21, 1924. All the Justices concur. S. P. Cain, for plaintiffs in error. J. 11. Singletary and Ilarisfield & Conger, contra.