Opinion
14756.
FEBRUARY 8, 1944. REHEARING DENIED MARCH 9, 1944.
Ejectment. Before Judge Fort. Taylor superior court. September 25, 1943.
S. T. Allen and R. S. C. W. Foy, for plaintiffs.
G. R. Jacob and John G. Cozart, for defendants.
1. When there is a conflict between the recitals in a bill of exceptions and the record, the record must prevail. Consequently, where certain persons are named as parties plaintiff in the bill of exceptions, and the record discloses that they are not named in the petition as parties in any capacity, they can not be considered as parties to the case.
2. Although a general demurrer is rarely available where an action to recover land is in the common-law or fictitious form, if it appears from the face of the petition that the lessor or plaintiff does not have title to the property sought to be recovered and is not entitled to its possession, the action is subject to dismissal on general demurrer.
( a) While in an action of ejectment in the common-law form an attached abstract of title is not a part of the petition, the plaintiff may make it a part either by incorporating it in the body of the petition, or by reference, or otherwise.
( b) Thus, where a petition in ejectment in the common-law form is accompanied by a "supplemental petition," in the body of which an abstract of title to the property sued for is incorporated in substance, such "supplemental petition" with the incorporated abstract of title becomes a part of the petition in ejectment.
( c) Where it appears from such petition that the persons in whom the demise is laid had conveyed away their whole title to the property before the action was brought, and no demise is laid in the person holding title to the property, the petition is subject to dismissal on general demurrer.
3. Although the demurrer of one of several joint defendants inures to the benefit of all the defendants where it goes to the merit and substance of the whole petition and challenges the plaintiff's right to any relief, this rule is not applicable where the demurrer does not challenge the plaintiff's right to any relief, but alleges only that the petition fails to set forth a cause of action against the demurring defendant.
No. 14756. FEBRUARY 8, 1944. REHEARING DENIED MARCH 9, 1944.
This is an action for land in the common-law form of ejectment, sometimes referred to as the fictitious form. It was brought in the name of John Doe as petitioner against Richard Roe as casual ejector, who was alleged to have damaged the petitioner in the sum of $3000. The demise of the lands to the petitioner is alleged to have been made in March, 1923, from J. A. Heath, Mrs. Eunice Peed, W. B. Heath, A. G. Heath, Geo. M. Heath, and Mrs. Leila Moore Heath and Mrs. Elizabeth Heath Singletary, the two latter being the wife and daughter respectively and the only heirs of E. H. Heath, deceased, all of whom are all the heirs of Geo. A. Heath, deceased "except petitioners deceased." The petitioner alleged that he entered upon the leased premises, and thereafter, on October 31, 1939, was ousted and ejected from said lands by Richard Roe. That since the action, the defendants have received the rents and profits arising from the use of said lands of the value of $1000 per year. The issuance of process and second originals was prayed. With the foregoing declaration, another petition denominated a "supplemental petition" was filed for the purpose of showing the relation between the parties to the action. In this supplemental petition it is averred in substance that on or about February 10, 1909, two of the petitioner's lessors, J. A. Heath and E. H. Heath, executed and delivered to J. T. Parker their bond for title to the lands described in the petition, taking notes for the purchase-money, two of which are past due and unpaid since December 1, 1911. That Parker refused to surrender the property, or to pay the balance of the purchase-money, claiming the statute of limitations against the debt. That in March, 1923, the heirs of Geo. A. Heath, deceased deeded the property described in the declaration, "together with other property, to petitioner's deceased, Mrs. Corrie H. Ewing, and petitioners, as representatives of her estate, stand in the place of said heirs of Geo. A. Heath," and that Parker had knowledge of the deed at the time it was made. That in the fall of 1941 Parker, while pretending to negotiate with petitioners for a settlement of the balance due, with the aid of O. L. Miller, Chas. W. Moore, and Tindall Smith, a colored sawmill man, all of Talbot County, trespassed upon said lands, cutting timber, removing part of it and converting it to their own use, and leaving part upon the premises to waste, and that they refuse to pay petitioner for the value thereof. That Parker and his agents have collected the rents and profits from the land, converted the same to their own use, have refused to pay the taxes assessed against the land for several years, and have left the improvements thereon in disrepair, all to the damage of the petitioners. The prayers are: (1) for process and service; (2) that title to the land, free of the bond for title or other claim, be decreed in petitioners; that the bond for title be surrendered and canceled, and if it is lost or can not be produced, copy thereof be established and canceled; (3) that petitioner recover of the defendants for mesne profits, the full value of the timber destroyed and appropriated, and damages for trespass, including punitive damages and attorney's fees. Process and notice to defend were directed to Booker T. Lockhart, J. T. Parker, O. L. Miller, Chas. W. Moore, and Tindall Smith, all of whom, except Parker, were served. To the declaration and supplemental petition Miller filed special demurrers, and Smith filed both general and special demurrers. The judge sustained the "general demurrers filed by defendants," and dismissed the petition. In the bill of exceptions assigning error on this judgment, in addition to those named in the declaration as lessors or the real plaintiffs, Mrs. M. M. Simmons and Chas T. Stewart as administrators of the estate of Mrs. Corrie H. Ewing, deceased, are named as plaintiffs in error.
1. Mrs. M. M. Simmons and Chas. T. Stewart as administrators of the estate of Mrs. Corrie H. Ewing, deceased, are designated in the bill of exceptions, along with other named persons, as plaintiffs in error, and are otherwise therein referred to as parties to the case; but the record shows that they are not named in the petition either as parties plaintiff or as parties defendant. The only reference made in the petition to these parties is the fact that the lessors, the real plaintiffs in the case, deeded the described property to Mrs. Corrie H. Ewing, who is now deceased, and that her representatives stand in the place of said lessor. No demise is laid from these representatives, and they are not otherwise made parties. In such instance the record must prevail over the statement in the bill of exceptions to the effect that they are parties. McClure v. Smith, 56 Ga. 439; Ware v. City Bank of Macon, 59 Ga. 840; Ga. Southern Fla. Ry. Co. v. Pritchard, 123 Ga. 320 ( 51 S.E. 424); Crews v. Ransom, 183 Ga. 179 (3) ( 188 S.E. 1).
2. In Powell's Actions for Land, 118, § 95, it is stated in reference to actions for land that a "general demurrer is rarely available where the action is in the fictitious from." However, we know of no sound reason why a petition in ejectment in the common-law form should not be subject to dismissal on general demurrers if it appears from its face that the lessor, or plaintiff, does not have title to the property and is not entitled to its possessions. In the present case the petition in ejectment and the "supplemental petition" were filed together simultaneously, and served upon the defendants under the same process. It is by the allegations of these two petitions that the plaintiffs assert their right of recovery. In the supplemental petition, showing the relation between the parties, it is alleged that in 1909 two of the lessors executed and delivered to J. T. Parker, one of the defendants, a bond for title to the lands in question; that Parker owes two purchase-money notes on said property, which have been past due and unpaid since December 1, 1911, and that he refuses to surrender the property. It is alleged further that the heirs of Geo. A. Heath, deceased, deeded the property described in the declarations to Mrs. Corrie H. Ewing, whose representatives stand in the place of the heirs of Geo. A. Heath. Since these allegations, descriptive of the title to the lands sought to be recovered, might not amount to an abstract of title, they disclose in whom the title rests, and being incorporated in the petition, must be considered as a part thereof. In the case of Dugas v. Hammond, 130 Ga. 87, 90 ( 60 S.E. 268), it was said: "Under the statutory form of action the abstract of title is not a part of the petition. Yonn v. Pittman, 82 Ga. 637 ( 9 S.E. 667). The plaintiff may make it a part thereof by incorporating it in the body of his petition, or by making his exhibit which contains the abstract a part of his petition by reference or otherwise." Similarly, such a rule would be applicable to an action in the common-law form. The allegations of both petitions will be considered in determining whether the ruling sustaining the general demurrer thereto filed by the defendant. Tindall Smith, should be upheld. If it affirmatively appears therefrom that for any reason the lessors are not entitled to recover, the judgment sustaining the demurrer was correct as to the defendant Smith. Upon examination of the petitions, it will be observed that in the same count a demise was alleged in March, 1923, from several named persons, all of whom were alleged to be all of the heirs of Geo. A. Heath. Alleging a demise from two or more persons in the same count is a joint demise. Powell's Actions for Land, 58, § 27. Upon further examination, it is disclosed that in March, 1923, all of the heirs of Geo. A. Heath (who are the same persons named as lessors in the joint demise) deeded the lands in dispute to Mrs. Corrie H. Ewing. Thus it clearly appears that the plaintiffs had parted with their title before the commencement of the present action, and therefore can not recover. "No recovery can be had upon the demise of a person who had conveyed away his whole title before the action was brought." Hobby v. Bunch, 83 Ga. 1 (3) ( 10 S.E. 113, 20 Am. St. R. 301). Further, "In an action of ejectment the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's title." Capps v. Smith, 175 Ga. 795 ( 166 S.E. 234); Code, § 33-101. No demise is averred from the representatives of Mrs. Corrie H. Ewing, who had held the title to the lands. "In ejectment no recovery can be had upon the title of a person from whom no demise is laid in the declaration." Hobby v. Bunch, supra. In the case of Toms v. Quitman County, 183 Ga. 391 ( 188 S.E. 537), it was held as follows: "While plaintiff in ejectment may ordinarily recover upon his prior possession, he can not do so where he goes further and shows affirmatively that the title and right of possession is in another. Under this principle, the original petition filed in this case did not state a cause of action in the plaintiff." The petitions showing that some twenty years before the filing of the complaint, the plaintiffs had conveyed the title to the lands sought to be recovered to a third person in whom no demise was laid, the lower court properly dismissed the petition as to the defendant Smith on his general demurrer.
3. While in a case "where some of several joint defendants demur to the plaintiff's petition, and the demurrer goes to the substance of the whole petition and challenges the plaintiff's right to any relief, such demurrer inures to the benefit of all, though some may be in default" ( Tate v. Goode, 135 Ga. 738, 70 S.E. 571, 33 L.R.A. (N.S.) 310; Tillman v. Davis, 147 Ga. 206, 93 S.E. 201; McKinney v. Powell, 149 Ga. 422, 430, 100 S.E. 375; Benson v. Lewis, 176 Ga. 20 (2), 166 S.E. 835), this rule is not applicable where, as in the present case, the demurrer does not challenge the plaintiff's right to any relief, but only alleges that the "petition fails to set out any cause of action against this defendant." It was error to dismiss the petition as to any of the defendants except Tindall Smith, who filed the general demurrer.
Judgment affirmed in part, and reversed in part. All the Justices concur.