Massachusetts Bonding & Insurance v. Smith

Beck, P. J. (After stating the foregoing facts.) We are of the opinion that the court erred in overruling the demurrer based upon the ground of laches and negligence upon the part of the plaintiff in discovering the fraud which he alleges as an excuse for his failure to bring the suit to set aside the judgment of the ordinary, discharging the administrator, within the statutory period. Section 4358 of the Civil Code, relating to motions to set aside judgments and decrees and th'e time within. which such motions must be made, provides: "All proceedings of.every kind in any court of this State, to set aside judgments or decrees of the courts, must be made within three years from the rendering of said judgments or decrees.” The judgment discharging the administrator was rendered by a court' of competent and general jurisdiction, and no sufficient excuse is alleged in this petition for the failure of the petitioner to move in this matter within the time fixed by the statute. Conceding that the statute was tolled by the period of time during which the plaintiff was serving in the army [801] and in France and in this country, nevertheless more than three years elapsed after the plaintiff’s discharge from the army and his return to Georgia before he took any steps to have the judgment set aside, which he now claims was obtained by the fraudulent representations of his uncle, the administrator., The statute contained in section 4380 of the Civil Code declares: “If the defendant, or those under whom he claims, has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud.” It will be observed, in reading this statute, that the fraud which excuses the plaintiff from moving within the time fixed by the statute is fraud “by .which the plaintiff has been debarred or deterred from his action.” And we are of the opinion that no act of fraud on the part of the plaintiff’s uncle, the administrator named as a defendant, is alleged, tending to show that the plaintiff was debarred or deterred from his action. The slightest diligence upon the part of the plaintiff would have discovered what he now charges to have been fraud and fraudulent representations. In the petition it is not shown that the plaintiff was ignorant of'the fact that he was entitled to a distributive share of the estate of William Smith, his grandfather, that it was a large estate, and that he was entitled to a one sixth interest in it. Nor is it alleged that plaintiff was ignorant of the fact that in November, 1917, the defendant, L. A. Smith, had been appointed administrator of the estate of plaintiff’s grandfather; and that on the 4th day of November, 1918, an order was granted discharging the administrator. The application for a discharge showed that the administrator claimed that after paying the debts of the estate he had turned over the residue to the heirs at law, one of whom was this plaintiff. Plaintiff was discharged, from the army about the first of May, 1919, and within two or three days returned to his home. The suit was not filed until April, 1924, nearly five years after the plaintiff returned to his home from the army. A most superficial examination of the records of the court of ordinary, a mere glance at the returns, would have shown that the administrator had made the statement that he had paid over to the heirs their distributive shares of the estate, and this plaintiff would have known that as to him that statement was false. [802] The relation between an administrator and the distributees is to a certain extent a relation of confidence and trust. Collier v. Collier, 137 Ga. 658 (74 S. E. 275, Ann. Cas. 1913A, 1110). The relation between a nephew and uncle may be confidential, and may under certain circumstances excuse delay upon the part of the nephew in bringing his action against the uncle within the period prescribed by law. Delkin v. McDuffie, 134 Ga. 517 (68 S. E. 93). But unless the plaintiff has been lulled into a'false sense of security by some act or statement made by an administrator, though the plaintiff and. the administrator bore the relationship of nephew and uncle, the nephew, who claimed the uncle obtained his discharge as administrator by fraud, would not be excused from showing that something had been done by the uncle to lull him into a false sense of security or to cause him to fail to exercise the least diligence to ascertain the state of the account between himself and his uncle. In the case of Kirkley v. Sharp, 98 Ga. 484 (25 S. E. 562), it was said: “As a general rule, section 2931 of the Code, which provides that if the defendant ‘has been guilty of a fraud by which the plaintiff has been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud/ does not apply unless the plaintiff has exercised at least ordinary diligence to discover the fraud; but failure to employ the necessary means to discover such fraud may be excused, when the plaintiff has been lulled into a sense of security by reason of a relation of trust and confidence between himself and the defendant, rendering it the duty of the latter to disclose the truth, and when it also appears that because of this confidence the plaintiff was actually deterred from sooner discovering the fraud, or even suspecting that any fraud had been perpetrated upon him.” But in this case no sufficient fact is alleged to show that because of the confidence of the plaintiff in the defendant administrator he was actually deterred from sooner discovering the fraud alleged in his petition. He does allege that the defendant, the administrator, resided in the City of Savannah, while petitioner’s home was in Tattnall County, and that petitioner had but infrequent opportunities of seeing the defendant and making inquiries relative to the condition of the estate of which his uncle had been appointed administrator; that upon one occasion when petitioner saw his uncle he spoke to him, and the [803] defendant promised that he would go to the home of petitioner before he returned to Savannah, but failed to keep this promise. The plaintiff charges that the defendant, in failing to keep his promise, and by his returning home without seeing petitioner, evaded petitioner and avoided an opportunity of petitioner’s speaking to him relative to the condition of the estate, for the purpose of concealing from petitioner his acts and doings relative thereto. And it is also charged in the petition that the administrator continuously concealed from the petitioner the condition of the estate and the fact that he had be¿n discharged as administrator. We do not think these allegations show that petitioner could not readily, and by the exercise of the slightest diligence, have ascertained the falsity of the statements in the administrator’s application for 'a discharge, at least so far as related to his part in the estate. And having failed to exercise any diligence whatever, and not having been lulled into a false sense of security by any act or statement of the administrator, he is not entitled, after the lapse of nearly five years from the date of his return to the State of Georgia, to have this judgment set aside and the accounts reopened. . Judgment reversed. All the Justices concur, except