Opinion
17329.
FEBRUARY 13, 1951.
Title to land. Before Judge Rowland. Twiggs Superior Court. October 6, 1950.
Hall Bloch, J. Rene Hawkins, and Denmark Groover, for plaintiff in error.
James D. Shannon, R. A. Harrison, and Martin, Snow Grant, contra.
For reasons stated in the opinion, the present case is one falling within the jurisdiction of the Court of Appeals, because none of the relief prayed for is of such character as to give this court jurisdiction under the Constitution of 1945.
No. 17329. FEBRUARY 13, 1951.
George E. Ray filed a proceeding for declaratory relief in the Superior Court of Twiggs County, Georgia, against Mrs. Mary Lou Bull Simmons. J. Calder Bond was appointed guardian ad litem to represent her, and accepted the appointment. In so far as it is material here, the petition alleges: Mrs. Simmons was committed to the Milledgeville State Hospital on May 31, 1939, as a person of unsound mind. In July of the same year, she was permitted to leave the hospital and did not return thereto until July, 1940. While absent from the hospital, and on October 9, 1939, she and J. F. Simmons, her husband, sold and by warranty deed jointly conveyed to the petitioner certain described real estate in Bibb County, Georgia, she being then of "perfectly sound mind." At the time of his purchase, the petitioner took possession of the land so acquired; and has since been, and is now, in actual possession of it. In 1943, the Ordinary of Twiggs County appointed G. F. Benjamin guardian of the person and property of Mrs. Simmons; and he qualified as such and now resides in Twiggs County. The defendant is at present temporarily residing in Echols County, Georgia. The defendant is now contending that her deed to the petitioner is void, and consequently of no effect, because she was insane at the time of its execution and delivery. She, or a relative acting for her, has employed counsel, who has notified the defendant's guardian that the deed involved is void; and that the petitioner, for that reason, does not have title to the land described therein. The petitioner, because of the defendant's contention concerning his deed, can not with safety and security offer the land described therein for sale, though he desires to do so. The petitioner's position of insecurity and uncertainty about the validity of his deed is increased because a presumption in favor of its invalidity arises by operation of law from its execution and delivery after the defendant was adjudged insane; and further because the defendant may delay an actual attack upon the validity of the deed until it is impossible for him to procure evidence of her sanity at the time of its execution. It is also alleged that the petitioner has no remedy, either at law or in equity, by which he can obtain an adjudication of his rights under the deed, and for that reason a resort to the statutory remedy afforded by the declaratory judgment act of 1945 is necessary for adequate relief.
Besides for process, the prayers are: that a guardian ad litem be appointed to represent the defendant; that a second original process be issued, directed to the Sheriff of Echols County, Georgia, for service, along with a copy of the petition, upon the defendant; that G. F. Benjamin, as guardian of the person and property of the defendant, be served with a copy of the petition and process; that a time, not less than twenty days after service, be designated for a trial and determination of the case; that the court take jurisdiction of the controversy and declare the rights and relations of the parties with respect to the deed in question; and that the petitioner have whatever other and further relief he is entitled to under the provisions of the declaratory-judgment statute.
The defendant demurred generally upon the ground that the allegations of the petition show that the Superior Court of Twiggs County does not have jurisdiction of the subject-matter; and upon the further ground that the allegations do not show a proper cause for relief under the provisions of the declaratory-judgment act. She also demurred specially to paragraph 10 of the petition on the ground that the allegations thereof were mere conclusions of the pleader, not substantiated by the allegations of the petition. The exception here is to a judgment overruling the demurrers.
With or without motion therefor, it is always the duty of this court to determine its jurisdiction. McDowell v. McDowell, 194 Ga. 88 ( 20 S.E.2d 602); Brockett v. Maxwell, 200 Ga. 213 ( 36 S.E.2d 638); Dade County v. State of Georgia, 201 Ga. 241 ( 39 S.E.2d 473). By article 6, section 2, paragraph 4 of the Constitution of 1945, this court is given jurisdiction "in all cases respecting title to land" and "in all equity cases." Code, (Ann.), § 2-3704. But, after a careful examination and consideration of the petition in the present case, we have reached the very definite conclusion that this court does not have jurisdiction of the writ of error for either of the above constitutional reasons; and this is true because:
(a) "Cases respecting title to land," as that term is used in the Constitution for the purpose of defining the jurisdiction of this court, refer to and mean actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land. Frazier v. Broyles, 145 Ga. 642 ( 89 S.E. 743); Owenby v. Stancil, 190 Ga. 50 ( 8 S.E.2d 7); Powell on Actions for Land, § 150. Obviously, since the petition in this case shows that the plaintiff is now, and has been since October 9, 1939, in actual possession of the land described in the deed here involved, the present action is not one at law for the recovery of land, either in ejectment or any of its substitutes.
(b) In Felton v. Chandler, 201 Ga. 347 ( 39 S.E.2d 654), and again in Milwaukee Mechanics' Ins. Co. v. Davis, 204 Ga. 67 ( 48 S.E.2d 876), this court held that the relief provided for under the provisions of our declaratory-judgment act (Ga. L. 1945, p. 137) is not equitable per se; and in suits instituted under the act, where there is an absence, as here, of appropriate pleadings and prayers for specific equitable relief, in addition to those for the statutory relief provided for thereby, the case does not fall within the jurisdiction of this court as being one in equity.
And since the allegations and prayers of the petition are not such as otherwise make a case which comes within the jurisdiction of this court, it necessarily follows that the Court of Appeals has jurisdiction of the writ of error under article 6, section 2, paragraph 8 of the Constitution of 1945 (Code, Ann. § 2-3708), and it must be and is
Transferred to the Court of Appeals. All the Justices concur, except Head, J., who dissents.