Opinion
16488.
FEBRUARY 17, 1949.
Land registration, etc. Before Judge W. R. Smith. Clinch Superior Court. October 25, 1948.
Copeland Dukes and John J. Gilbert, for plaintiff in error.
Sapp Ewing and R. G. Dickerson, contra.
Persons who were parties plaintiff in the trial court and in whom title was decreed in a proceeding to register title to certain land were necessary defendants in error in a bill of exceptions brought to this court by one of the defendants, this requirement being unaffected by the fact that such parties plaintiff in the trial court had entered into a contract with other plaintiffs therein fixing the liability of the latter in the event of failure of registration of title to the land in question.
No. 16488. FEBRUARY 17, 1949.
Pursuant to the provisions of the Land Registration Act (Code, §§ 60-101 et seq.), I. Daugharty and G. R. Daugharty filed in Clinch Superior Court their application to register the title to lots of land numbers 37 and 38 in the 12th land district of said county. The judge of the superior court referred the application to an examiner. Brunswick Peninsular Corporation, having by motion entered its appearance in the cause as a party defendant, filed a motion to require A. S. Mitchell and Minnie S. Mitchell of Mobile County, Alabama, to show cause why they should not be substituted as applicants in lieu of I. Daugharty and G. R. Daugharty, the original applicants having executed to them a warranty deed purporting to convey certain land to them, including the two lots of land the title to which it was sought to register. The examiner entered an order requiring the named persons to show cause why they should not be made parties plaintiff. A. S. Mitchell and Minnie S. Mitchell, who were represented by a different attorney, filed their answer admitting that they purchased lots 37 and 38, and setting forth that a deed to secure debt was given the Daugharty brothers against said lands purchased, paragraph 7 of which reads as follows: "Should the grantee herein be not successful in registering said lots No. 37 and 38 in the 12th district, then the grantee agrees to credit the grantor's notes at $13.67 per acre for 980 acres, which is to be credited on the final note due under the terms of the security deed." A. S. Mitchell and Minnie S. Mitchell averred further that under the terms of the security deed it is the paramount right and duty of I. Daugharty and G. R. Daugharty to continue the suit for registration of lots 37 and 38. Thereafter the examiner entered an order making A. S. Mitchell and Minnie S. Mitchell parties plaintiff. After hearing evidence the examiner filed his final report, consisting of findings of fact and conclusions of law, in favor of the registration of title to the land in favor of the petitioners and adverse to the defendants. Brunswick Peninsular Corporation filed its exceptions to the findings of fact and conclusions of law. It was agreed that the judge of the superior court should pass upon the exceptions of fact, as well as upon the exceptions of law. After argument the judge entered an order sustaining the report of the examiner, overruling all exceptions to the findings of fact and conclusion of law, and decreeing that the fee-simple title was in A. S. Mitchell and Minnie S. Mitchell. Brunswick Peninsular Corporation assigned error on the above judgment in a direct bill of exceptions.
I. Daugharty and G. R. Daugharty made a motion in the Supreme Court to dismiss the writ of error on the ground that A. S. Mitchell and Minnie S. Mitchell, parties plaintiff in the trial court, were not named or served as parties defendant in error in the bill of exceptions.
All persons who are interested in sustaining the judgment excepted to are indispensable parties in the Supreme Court, and must be made parties to the bill of exceptions, or the writ of error will be subject to dismissal. Code, § 6-1202; Hancock v. Lizella Fruit Farm, 184 Ga. 73 ( 190 S.E. 362); Boyd v. DeVane, 202 Ga. 243 (1) ( 42 S.E.2d 632).
Counsel for the plaintiff in error concede that the Mitchells, having received a deed purporting to convey title to the lots in question, were necessary parties in the trial court, but insist that they are not necessary parties in the Supreme Court, since by their contract they provided against the eventuality of the failure of title to such lots. The right of the Mitchells under the security deed to have their notes reduced in the amount stated, if title registration failed, amounts to no more than a definite agreement as to the extent of liability in the event of failure to register the title. The Mitchells, being parties to this suit and the title having been decreed in them, were necessary parties in this court irrespective of any contract they had with the Daughartys from whom they acquired the land.
Accordingly, the record showing that title to the two lots was decreed to be in the Mitchells, they were interested in sustaining such judgment, and since they were not made parties to the bill of exceptions, complaining that the trial court erred in overruling the defendant's exceptions to the findings of the examiner, the motion to dismiss the writ of error on that ground must be sustained.
Writ of error dismissed. All the Justices concur.