Opinion
14510.
APRIL 13, 1943.
Establishment of lost deed. Before Judge Wyatt. Carroll superior court. January 16, 1943.
Leon Hood; for plaintiff in error.
Willis Smith and Robert D. Tisinger, contra.
1. Where a petition in a superior court to establish a copy of a deed claimed to have been lost alleged only that the debtor resided in the county in which the suit was filed, that he had executed to the plaintiff a certain deed, a true copy of which was attached to the petition, and that the deed had been lost, and in which petition the only prayer was that "the clerk of this court issue a rule nisi calling upon [the defendant] to show cause, if any he has, why the copy deed aforesaid should not be established in lieu of said lost original," such petition was a mere statutory proceeding to establish a copy of the deed claimed to have been lost, and was not a suit in equity. Code, §§ 29-113, 63-203; Drawdy v. Musselwhite, 150 Ga. 723 ( 105 S.E. 298); Bond v. Reid, 152 Ga. 481 ( 110 S.E. 281). Compare Farkas v. Stephens, 181 Ga. 669 ( 183 S.E. 796); Trust Company of Georgia v. Finsterwald, 188 Ga. 794 ( 4 S.E.2d 808, 125 A.L.R. 992).
2. The proceeding was not converted into an equity case by the answer of the defendant, asserting only that the deed executed by him contained a provision whereby title would revert to him on a certain condition stated, and not invoking any equitable relief; nor did it constitute a suit respecting title to land. Drawdy v. Musselwhite, supra.
3. Where in such case the jury found in favor of the plaintiff's contention as to the character of the deed, and upon such verdict the judge entered a decree that the plaintiff recover the land described, that fee-simple title be vested in it, and that the deed attached to the petition be established as prayed, the only effect of the decree was to establish the deed as prayed by the plaintiff; the provisions therein as to recovery of land and decree of title being surplusage. Accordingly, the form of the judgment did not make the case one in equity or one respecting title to land. Nor does the case otherwise come within the jurisdiction of the Supreme Court.
4. Under the foregoing rulings, the Court of Appeals, and not the Supreme Court, has jurisdiction of the writ of error, and it is transferred accordingly. Code, §§ 2-3005, 2-3009.
Transferred to Court of Appeals. All the Justices concur.
No. 14510. APRIL 13, 1943.
The Carroll County Board of Education filed in the superior court a petition against J. A. Loftin, in which petition were the following allegations: 1. The defendant is a resident of said county and State. 2. Petitioner is the owner of a certain warranty deed now lost or destroyed, conveying to petitioner a fee-simple title to certain lands therein described, situated in said county, of which deed the defendant Loftin is the maker. 3. A substantial copy of said deed "as near as petitioner knows" is hereto attached and made a part of this petition, the copy being attached as alleged. The sole prayer of the petition was "that the clerk of this court issue a rule nisi calling upon the said J. A. Loftin to show cause, if any he has, why the copy deed aforesaid should not be established in lieu of said lost original." In his answer "the defendant says that some fifteen years ago he did execute a deed . . to the property described in the attached deed, but denies that the same was without reservation, and alleges that the deed executed by him to the grantee carried a provision in substantially the following language: `This conveyance is made to grantee with the understanding that the land is to be used for school purposes only, and when it ceases to be so used, the title to same shall revert to grantor, his heirs and assigns,' and that the attached deed to said suit is therefore not a true and correct copy of the deed executed by this defendant as aforesaid. . . Wherefore this defendant prays: that if any lost deed be established, . . that the attached deed to said suit be so amended that whenever said property ceases to be used for educational purposes that the title to the same shall revert to him, his heirs and assigns." Neither the petition nor the answer was amended. After the introduction of evidence by both sides, the judge submitted the case to a jury on the issue whether the deed to be established should be one in fee simple, as contended by the plaintiff, or one containing the reservation as prayed by the defendant. A verdict was returned in favor of the plaintiff; and thereupon the court entered a decree adjudging that the plaintiff recover the land described in the deed, that title thereto be decreed in the plaintiff in fee simple, and that the copy attached to the petition be established as prayed. The defendant moved for a new trial on the general grounds and on several grounds added by amendment. The motion was overruled, and the defendant excepted. In the judge's certificate the writ of error was made returnable to the Supreme Court, and it was so returned by the clerk.