Opinion
23228.
SUBMITTED DECEMBER 13, 1965.
DECIDED FEBRUARY 2, 1966.
Divorce. Glynn Superior Court. Before Judge Lilly from Southern Circuit.
Thomas E. Spell, for appellant.
George B. Cowart, Neal G. Gale, Cowart, Sapp, Alaimo Gale, for appellee.
The parties in a divorce action can settle questions between them in regard to the title to land and the division of property.
SUBMITTED DECEMBER 13, 1965 — DECIDED FEBRUARY 2, 1966.
On January 5, 1962, Beauford Goodwill filed an action for divorce against his wife, June Johnson Goodwill, alleging cruel treatment. In this action he set out the amount of his earnings and the property owned by him. He further alleged: Prior to his marriage to the defendant he was the owner of described portions of Lots 51 and 52 in the City of Brunswick; and prior to their marriage the defendant owned a described portion of Lot 12 in Brunswick. In June, 1957 (after their marriage), he and the defendant entered into an oral contract in which he was to sell his described portion of Lot 51, and purchase a described portion of Lot 15 and all of Lot 16 in Brunswick, placing a one-half undivided interest in this property in the defendant, and she agreed to convey to him a one-half undivided interest in her described portion of Lot 12. On July 3, 1957, the plaintiff sold his portions of Lots 51 and 52, and with the proceeds of the sale purchased the property in Lots 15 and 16 previously described, and placed a one-half undivided interest in the property in the defendant. The plaintiff has fully complied with his part of the oral contract with the defendant and a great injustice will be done him if she is not required to comply with her obligations under the contract and convey to him a one-half undivided interest in the portion of Lot 12 owned by her. He prayed that the defendant be temporarily restrained from harassing or molesting him; that he recover a one-half interest in the real property of the defendant, that the property of the plaintiff and the defendant be sold and the proceeds divided equally between them; and that a divorce be granted between the parties.
The notice of appeal recites that the defendant, June Johnson Goodwill, appeals from a judgment overruling her general and special demurrers. The errors enumerated are the overruling of her special demurrers 1, 2, 3, and 7. The first special demurrer asserts that the petition is duplicitous because it contains in a single count three separate and distinct causes of action, an action for divorce, an action for specific performance of an oral contract to convey land, and an action for partition of jointly owned property, such causes of action being of a character so different that they can not be litigated in one record; and that the plaintiff should be required to elect which of the causes of action he will pursue. The second special demurrer asserts that there is a misjoinder of causes of action, and the third special demurrer asserts that the petition is multifarious. Special demurrer 7 moves to strike paragraphs 15 and 17 of the petition because the allegations in these paragraphs are not germane to a suit for divorce.
The sole question for decision in the present case is whether or not the parties in a divorce action can settle questions between them in regard to the title to land and the division of property.
No decision of this court has been cited, and we have found none, which holds that questions in regard to the title to the joint and separate property of the parties can not be tried in a divorce action. We have found cases in which some doubt has been expressed, as in Carithers v. Carithers, 202 Ga. 596 (3) ( 43 S.E.2d 503), where it was stated that no question had been raised as to the right to try title to property in a divorce proceeding. In numerous decisions this court has dealt with divorce actions which included issues in regard to the title to land. For instance see: Tribble v. Tribble, 166 Ga. 850 ( 144 S.E. 665); Ward v. Ward, 186 Ga. 887 (2) ( 199 S.E. 195); Gardner v. Gardner, 206 Ga. 669 (1) ( 58 S.E.2d 416); Hinkle v. Hinkle, 209 Ga. 554 (3) ( 74 S.E.2d 657); Mathews v. Mathews, 220 Ga. 247 (6) ( 138 S.E.2d 382).
This court has held that: "Proceedings for a divorce and for alimony have always, under the practice in this State, been regarded as equitable." Rogers v. Rogers, 103 Ga. 763, 765 ( 30 S.E. 659); Moss v. Moss, 196 Ga. 340, 345 ( 26 S.E.2d 628). It is provided in Ga. L. 1946, pp. 90, 91 ( Code Ann. § 30-105) that in actions for divorce where the "division of property is involved," the petition shall show the property and earnings of each party. Code § 30-118 provides: "The verdicts of juries disposing of the property in divorce cases shall be carried into effect by the courts, by entering up such judgment or decree, or taking such other steps usual in courts of equity, as will effectually and fully execute the same." These provisions of our divorce statutes certainly indicate that settlement of property rights can be made in a divorce action.
The question in the present case was decided, in principle, in the unanimous decision in Ogles v. Smith, 177 Ga. 361 ( 170 S.E. 234), wherein it was held: "To a suit for divorce and alimony an answer in the nature of a cross-action to cancel a deed to realty from the defendant to the plaintiff, as having been procured by fraud and with intent to separate from defendant and to drive him from his home, and an amendment alleging that more recently the plaintiff had made a conveyance of the realty to her daughter by a former marriage, who took with notice, and making the daughter a party, were not demurrable on the grounds that the defendant was not entitled to the relief for which he prayed, that there was a misjoinder of parties and of subject-matters, and that the amendment was not germane to the allegations of fact in the original petition." See also Davis v. Davis, 216 Ga. 305 (2) ( 116 S.E.2d 219).
The trial judge in the present case correctly held that the petition for divorce, specific performance of an oral contract between the parties, and a division of property, was not subject to the special demurrers filed by the appellant. No question was made by these demurrers as to whether or not the allegations of the petition were sufficient to authorize the relief sought.
Judgment affirmed. All the Justices concur.