Phipps v. Wright

110 S.E. 511, 28 Ga. App. 164, 1922 Ga. App. LEXIS 355

• Court: Court of Appeals of Georgia
• Decided: February 1, 1922
• Docket: 12564
• Status: Published

Opinions

Jenkins, P. J.

1. An action for deceit whereby one is fraudulently induced by another to purchase property of a much less value than the consideration given therefor is for “ an injury . . done to property, and not to the person, and the statute of limitations in reference to actions for injuries to property applies.” Crawford v. Crawford, 134 Ga. 114 (2) (67 S. E. 673, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932); Frost v. Arnaud, 144 Ga. 26 (1) (85 S. E. 1028).

2. All actions for injuries to property, real or personal, must be brought within four years after the right of action accrues. Civil Code (1910), §§ 4495, 4496.

3. While it is generally true that, where the plaintiff has been deterred or debarred from his action by reason of fraud on the part of the other party, the statute of limitations does not run until the discovery of the fraud (Civil Code of 1910, § 4380), yet “fraud which tolls the statute of limitations must be such fraud as could not have been discovered by the exercise of reasonable diligence, where there is no confidential or fiduciary relation existing between the parties, or other facts which will excuse the failure to act.” Crawford v. Crawford, supra.

4. The burden is upon the party asserting the existence of such a confidential or fiduciary relationship to show it affirmatively (Crawford v. Crawford, supra), and allegations are not sufficient which- merely allege that the plaintiff was “ lulled into a sense of security ” by reason of the fact that the defendant lived in the same community, as her friend and neighbor, that during such long period of “ friendship ” she had “ every reason to believe, and did believe, in his honesty, sincerity, veracity, and straightforwardness,” that she had “ implicit faith in his truthfulness, and by reason of trust and confidence in him purchased . .. said property, and accepted in so doing defendant’s statements and representations ... as a self-evident truth.” Bryan v. Tate, 138 Ga. 321, 323 (75 S. E. 205).

5. Where it is sought to avoid the statute of limitations by an allegation that the petition was brought within the statutory period after the discovery of the fraud, a mere declaration that the plaintiff used all diligence which he could to discover the fraud, without alleging how he was diligent, and the extent of the efforts made by him to discover the fraud alleged, is not sufficient to relieve the ease from the bar of the statute (Edwards v. Smith, 102 Ga. 19 (1), 29 S. E. 129), especially where, as here, it appears from the petition that the plaintiff was in actual possession of the purchased property for a period of more than seven years after the perpetration of the alleged fraud in connection with the sale, during all of which time there was nothing to prevent the discovery of the alleged deception, by the exercise of the ordinary powers of observation. The general demurrer was properly sustained. See also, Sutton v. Dye, 60 Ga. 449; Marler v. Simmons, 81 Ga. 611, 613; (8 S. E. 190), Bailey v. Freeman, 140 Ga. 71 (78 S. E. 423); Kirkley v. Sharp, 98 Ga. 484 (25 S. E. 562), where (unlike the instant case) an actual fiduciary relationship was alleged).

Decided February 1, 1922. Rehearing denied February 22, 1922.

Action for damages; from Banks superior court — Judge Fortson. April 25, 1921.

J. C. Edwards & Sons, for plaintiff. Charters, Wheeler & Lilly, for defendant.

Judgment affirmed,.

Stephens and Hill, JJ., concur.