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HARRISON et al. v. HARRISON et al.
HAWKINS, Justice.
Cancellation. Thomas Superior Court. Before Judge Lilly. April 21, 1958.
1. Under the allegations of the petition, which, on demurrer, must be taken as true, the fiduciary relationship of principal and agent existed between the petitioner and the defendant Alton W. Harrison (Code 37-707), and the latter cannot make advantage or profit for himself out of the relationship to the injury of his principal. Code 4-205 and 37-708; Forlaw v. Augusta Naval Stores Co., 124 Ga. 261, 262 (6) (52 S. E. 898). Because of such relationship, the petitioner was justified in relying upon the representations of her agent and in failing to read and know the contents of the various deeds signed by her. Crosby v. Rogers, 197 Ga. 616 (2), 622 (30 S. E. 2d 248). " 'The relationship of principal and agent, being confidential and fiduciary in character, demands of the agent the utmost loyalty and good faith to his principal. Any breach of this good faith whereby the principal suffers any disadvantage and the agent reaps any benefit is a fraud of such nature as to preclude the agent from taking or retaining the benefit.' " Johnson v. Sherrer, 197 Ga. 392, 396 (29 S. E. 2d 581). See also Jordan v. Harber, 172 Ga. 139 (157 S. E. 652); Jones v. Hogans, 197 Ga. 404 (29 S. E. 2d 568); Brown v. Brown, 209 Ga. 620 (75 S. E. 2d 13). The numerous decisions cited by counsel for the plaintiffs in error to the effect that a party who can read must read, and that fraud which will relieve a party who can read must be such as prevents him from reading, apply to situations where the parties are dealing with each other at arm's length, and have no application to a situation such as that disclosed by the present petition, where the confidential and fiduciary relation of principal and agent is involved.
2. In Ralston v. Turpin, 129 U. S. 663, 675 (9 Sup. Ct. 420, 32 L. ed. 747), it is said: "It is for the common security of mankind . . . 'that gifts procured by agents, and purchases made by them, from their principals, should be scrutinized with a close and vigilant suspicion.' " See also Code 48-107, which provides that a gift by any person to one standing in a relationship of confidence "shall be scrutinized with great jealousy, and, upon the slightest evidence of persuasion or influence toward this object, shall be declared void at the instance of the donor or his legal representative, at any time within five years after the making of such gift."
3. Item 8 of the will of Boykin Harrison provided: "I expressly confer upon them [the executors] full and complete power to sell any part of my estate, not hereinbefore specifically devised, at public or private sale, with or without notice, and without any order of court, as they may deem best, with authority to make good and sufficient conveyances to the purchasers, holding the proceeds of any such sale to the same uses and trusts as are herein declared in this my last will." Such power of sale contemplates only a bona fide and valid sale upon a sufficient valuable consideration, and does not authorize the executors to make a sale or conveyance of the land as a gift, or upon nominal consideration. Taylor v. Phillips, 147 Ga. 761 (95 S. E. 289); Cochran v. Groover, 156 Ga. 323 (118 S. E. 865); State Highway Board v. Price, 174 Ga. 143 (162 S. E. 283).
4. The petition in this case alleged that the defendant Alton W. Harrison, as agent, had exclusive control of the assets and handling of all of the affairs of the Boykin Harrison Estate and of Mrs. Annie Mae Harrison; that he used petitioner's individual money in the estate affairs and for his own use; that he wrongfully appropriated to his own use the estate funds and funds of petitioner amounting to several thousand dollars; that he sold property, including bank stock belonging to petitioner, and never turned over to her the proceeds thereof; that he wrote checks on petitioner's personal account and used the proceeds for himself; that he kept all books and records pertaining to such transactions, and petitioner was denied access to them. Such allegations were sufficient to state a cause of action for accounting as against a general demurrer. Code 37-105, 37-301, and 37-302; Southern Feed Stores v. Sanders, 193 Ga. 884 (20 S. E. 2d 413), and cases there cited.
6. Under the foregoing authorities, the plaintiff's petition stated a cause of action, and the trial judge did not err in overruling the general demurrers thereto.
The petition alleges that, upon the probate of the will of Boykin Harrison, the defendant Alton W. Harrison was employed by the executors as their agent to take over and manage the estate, and that he also acted as agent for the plaintiff until December 23, 1957; that during all this time petitioner had the utmost confidence in Alton W. Harrison and relied entirely on his advice and representations in handling her affairs and the affairs of the estate; that he took and assumed the exclusive charge, possession, and control of the books, papers, records, receipts, and disbursements, lands, chattels, personal property, money, bank deposits, and all of the assets of said estate; and that this exclusive possession and control of all such assets continued thereafter continuously up to and including December 23, 1957; that at all times petitioner was inexperienced in business, not knowing about the business affairs of her husband, while the defendant Alton W. Harrison was a shrewd and experienced business man, in whom she reposed absolute confidence; that, shortly before the filing of her petition, she was informed by her attorneys that the public records of Thomas County, Georgia, revealed that within the past few months a total of ten warranty deeds had been made, nine of them purporting to be deeds of conveyance, all dated December 15, 1956, from petitioner and Ben F. Harrison, as executors, to Alton W. Harrison, and the tenth deed purporting to be a conveyance dated June 1, 1957, from petitioner as the surviving executrix of said will, all purporting to convey valuable properties of the Boykin Harrison Estate to Alton W. Harrison, the nine deeds first referred to reciting a consideration of "One Dollar, Love and Affection"; or "One Dollar"; or "Love and Affection"; that, by another deed, dated September 10, 1954, purporting to have been signed by petitioner and Ben F. Harrison, and reciting a consideration of "Love and Affection" a tract of land in Colquitt County, Georgia, containing 455.9 acres, which formerly belonged to Boykin Harrison, was conveyed to Alton W. Harrison; and that, by still another deed, bearing date of June 1, 1957, reciting a consideration of "Ten Dollars and other valuable considerations," but alleged to have been without any consideration, signed by petitioner as surviving executrix of the will of Boykin Harrison, a tract of land consisting of 2186.5 acres in Thomas County was conveyed to Alton W. Harrison. The petitioner alleges that, if any or all of these deeds were signed by her, it was without any knowledge on her part that they were deeds conveying properties belonging to the estate of Boykin Harrison to the defendant Alton W. Harrison; that they were signed by her without examination under the trust and confidence which she reposed in Alton W. Harrison and on his representation that they were merely some routine papers of some kind in connection with the administration of the estate, and it was necessary for her to sign the papers which now appear to be nine deeds, dated December 15, 1956, in order that Alton W. Harrison might sell his stack and that belonging to petitioner in the Farmers & Merchants Bank of Coolidge, and the signing of these papers was necessary to complete the sale of the bank; that she had no idea that by signing these papers she and her coexecutor were deeding away valuable real properties of the estate in which she had a one-half interest under her husband's will, and she signed the papers presented to her by Alton W. Harrison on his representation that they were simply papers incident to the bank sale which it was necessary for her to sign and which she signed without examination, accepting them for what they were represented to be by the said defendant because of the trust and confidence which she had reposed in him of the kind and nature and originating and existing under the circumstances set out in the petition.
It is further alleged that said deeds of gift were null and void for the reason that the executors of the estate were without authority to execute deeds of gift. The petition further alleges: that the defendant Alton W. Harrison was acting as agent and in charge of the estate for the executors and as agent for petitioner individually; that the estate was engaged in extensive farming operations, in the selling, leasing and renting of real estate and timber, and preparing tax returns; and that Alton W. Harrison had complete charge of the affairs of the estate; that she was entitled to receive individually from the estate a large sum of money in excess of $39,000, which sum of money was taken from her individual account by the defendant Alton W. Harrison and used by him in the payment of debts, obligations, and expenses of the Boykin Harrison Estate, and petitioner is entitled to an accounting, and repayment to her of said funds; that petitioner had an individual bank account in the Farmers & Merchants Bank of Coolidge, which bank was owned and operated by the defendant Alton W. Harrison, and he held and kept all records and had complete charge of her account, writing checks thereon as he pleased, and withdrawing and appropriating moneys therefrom for his own personal use in the sum of over $16,000; that all moneys deposited in the account were moneys due her from the Estate of Boykin Harrison and insurance policies on his life and from a year's support, and were deposited by the said defendant as her agent, that the defendant has never accounted to her for the proceeds received by him from the sale of her individual stock in the aforementioned bank; that, while acting as agent for the Boykin Harrison Estate and its executors, he fraudulently applied certain of the estate's money to his own use, the exact sum being unknown to petitioner, and as agent contracted and dealt with himself in his individual capacity and businesses he owned so as to reap excessive profits for himself individually through his dealings with said estate; that when she closed out her account with the said bank she received less than $100, and upon demand by her, the defendant Alton W. Harrison turned over to her only $20,000 in government bonds, stating that these represented her entire interest in the said estate; that the defendant Alton W. Harrison now holds deeds conveying to him individually all of the real estate owned by the said estate, and that out of the estate, valued for estate-tax purposes in 1946 at $340,000, she has now only the $20,000 in government bonds; and that she is entitled to an accounting from the defendant Alton W. Harrison as to his acts and doings as agent for the executors of the Boykin Harrison Estate and as agent for petitioner individually, as to her interest in the Boykin Harrison Estate, and as to her individual assets handled by him; and from the Estate of Ben F. Harrison as to any bonds, money, or assets which have been used for the benefit of Alton W. Harrison individually, who is alleged to be insolvent.
The petition prayed: that all of the writings in the form of deeds, copies of which are attached to the petition, be set aside and canceled; that an accounting be had between petitioner individually and in her official capacity as surviving executrix of the Estate of Boykin Harrison as against Alton W. Harrison individually and as against the Ben F. Harrison Estate in the hands of the defendants Alton W. Harrison and Alma Wright Harrison, as executors of the will of Ben F. Harrison, with respect to the one-half interest given to the said Ben F. Harrison by the Boykin Harrison will at least to the extent of the interest of Alton W. Harrison therein; for the appointment of a receiver; that the defendant Alton W. Harrison be restrained and enjoined from selling or disposing of any of the lands and properties described or any interest therein; for process; and for general relief.
To the petition as amended the defendants interposed their general demurrers, which were overruled by the trial court, and to this judgment the defendants except.
Bell & Baker, Altman & Johnson, s contra.
Gainey & Gainey, Cain H. Smith, for plaintiffs in error.
Saturday May 23 01:17 EDT

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