Opinion
13133.
FEBRUARY 15, 1940.
Equitable petition. Before Judge Mundy. Polk superior court. October 3, 1939.
J. A. Wright and Henry A. Stewart, for plaintiff in error.
Forest C. Oates Jr., I. L. Mundy and John L. Tison, contra.
1. Fairly construed, the answer, though asserting that the defendant, through inheritance from her mother, is tenant in common with plaintiffs, negatives her claim of ownership, and admits facts which establish the entire title in the plaintiffs.
2. A cross-petition seeking to introduce new and distinct matters not involved in the action as brought was subject to dismissal on demurrer.
3. An interlocutory injunction is not available as a remedy for the purpose of evicting a party from the actual possession of land, the right to which he is disputing with another.
No. 13133. FEBRUARY 15, 1940.
Randall Hayes and Ruby Hayes Walker brought their equitable petition in the superior court of Polk County, Georgia, against Georgia Wood and Lamar Callaway, children by a former marriage of Edna Hayes, the deceased wife of Randall Hayes. Petitioners allege that they are the owners in fee simple of the house and lot at No. 216 Thompson Street, in the City of Cedartown; that the described property was conveyed to them by deed, a copy of which was attached to the petition. The deed reciting that the property was conveyed to Randall Hayes and Edna Hayes jointly, share and share alike, but further provided: "Should either Randall Hayes or Edna Hayes die not having conveyed his or her interest, in that event the interest of the deceased shall revert to Ruby Hayes, the daughter, should she be living." Petitioners allege that during the last illness of Edna Hayes the defendant Georgia Wood, her daughter by a former marriage, whose legal residence was alleged to be in Cleveland, Ohio, came with her two children and she and they now occupy the residence above referred to, which is where petitioners reside, and which is the property in controversy; that the defendant refuses to vacate the premises, and claims an interest therein by reason of being the daughter of the deceased Edna Hayes; that defendants have no right, title or interest in or to the premises, and that defendant's claim is a cloud on petitioners' title and prevents the free enjoyment and possession of the premises; that Georgia Wood is insolvent; that there is no adequate remedy whereby the defendant and her effects may be evicted from the premises, and that petitioners are entitled to present relief. Paragraph 2 of the petition contains three allegations, to wit, (a) that petitioners are the owners in fee of a certain city house and lot; (b) the description is set forth, and further that (c) "the property described was conveyed to petitioners on the second day of June, 1921, by Mrs. Cora B. Mercer, and was recorded in the clerk's office in book ten, page 229, on the eighth day of June, 1921, as shown by copy of said deed attached to this petition." Among the prayers are these: that Georgia Wood "be restrained from entering upon and/or remaining on said premises," etc.; another, "that a decree be granted confirming petitioners' title and removing any cloud on the same over the pretended claim of the defendants;" and that "the defendants be required to plead and set up whatever claim or claims they can assert to the property herein described."
Georgia Wood filed her answer, not denying the execution of the deed referred to in the petition, but claiming that under it she and her brother, Lamar Callaway, as the children and heirs at law of Edna Hayes, own each a one-fourth undivided interest in the property. She also averred at great length that the petitioner Randall Hayes, while still living in the house with his wife, deserted her and refused to provide for her support and care during her illness, or to pay the funeral expenses after her death, all of which defendant averred were borne by her to the extent of more than a thousand dollars. In her answer she averred that "as the heir at law of her mother she owns an interest in said property, and is joint tenant and tenant in common with the plaintiffs in this case." She prayed that the prayers of the petitioners be denied, and that they be enjoined from selling or encumbering whatever interest they may have in the property in dispute, and that defendant have judgment against Randall Hayes in the sum of $1009. To her answer the petitioners filed general and special demurrers, which the court sustained, and dismissed the answer. After hearing evidence and argument of counsel, the court passed an order holding that the plaintiffs own the property in dispute, and are entitled to the injunction prayed, and decreed that the defendants each be restrained and enjoined from entering upon, using, occupying, or appropriating to their use in any way the property in dispute. To the ruling dismissing her answer, and to the final order and judgment of the court, Georgia Wood excepted.
1. The deed referred to in the foregoing statement of facts begins with the recital that it is an indenture between "Mrs. Cora B. Mercer of the one part, and Randall Hayes and Edna Hayes, his wife, and their daughter, Ruby Hayes, as hereinafter provided, of the other part;" and following the description of the granted premises occurs this language: "It is the purpose of this deed to convey a one-half undivided interest in the above-described property to each grantee Randall and Edna Hayes. Should either Randall Hayes or Edna Hayes die not having conveyed his or her interest, in that event the interest of the deceased shall revert to Ruby Hayes the daughter should she be living." The warranty clause is, "unto the said Randall Hayes, Edna Hayes, their heirs and assigns." Under this instrument, the interest which Edna Hayes took was not an estate which at her death passed to her heirs generally. Fairly construed, the answer of Georgia Wood admits that such title as the plaintiffs and her mother had to this property was acquired under and by virtue of this deed; and that the only interest which she, the defendant, claims is by inheritance from the mother. Since upon her mother's death, without having while living disposed of her portion, the mother's one-half interest went to the plaintiff, Ruby Hayes. The pleadings show a right in the plaintiffs to the whole of the property, notwithstanding the answer avers that she, the defendant, is a tenant in common with the plaintiffs. The judge correctly construed the deed and struck that part of the answer asserting a joint ownership in the property.
2. The other part of the answer was a cross-action against Randall Hayes for expenses incurred by the defendant in supporting her mother, he, it was alleged, having failed and refused to support her, and for burial expenses of the mother. There was a further allegation that he was insolvent. The prayers were: "That each and every one of the prayers of the plaintiffs be denied. That Randall Hayes be enjoined and restrained from selling or otherwise encumbering whatever interest that he may have or own in said property described and set out in said petition. That this defendant Georgia Wood have judgment against the said Randall for the several items of expenditure as set out in this petition, to wit: the sum of $1009." None of this was germane to the issues involved in the petition, and this part of the answer was properly stricken also. Johnson v. Stancliff, 113 Ga. 886 ( 39 S.E. 296); Peterson v. Lott, 137 Ga. 179 ( 73 S.E. 15); Bank of Soperton v. Holland, 142 Ga. 796 ( 83 S.E. 782); Atlanta Northern Ry. Co. v. Harris, 147 Ga. 214, 219 ( 93 S.E. 210); State of Georgia v. Callaway, 152 Ga. 871 ( 111 S.E. 563).
3. The second exception complains of the grant of the interlocutory injunction. The defendant was living on the premises. The injunction restrained her from entering upon, using, occupying, or appropriating to her own use the property in dispute. An interlocutory injunction, which if enforced would result in the dispossession of the defendant, is in effect a mandatory injunction. Nelson v. Billingslea, 187 Ga. 492 ( 1 S.E.2d 659); Smith v. Wood, 186 Ga. 214 ( 197 S.E. 246); Glover v. Newsome, 134 Ga. 375 375 ( 67 S.E. 935); Wilkes v. Folsom, 149 Ga. 512 ( 101 S.E. 185); Trudie Turpentine Co. v. Pearson, 159 Ga. 387 ( 125 S.E. 862); Burns v. Hale, 162 Ga. 336 ( 133 S.E. 857); Russell v. Mohr-Weil Lumber Co., 102 Ga. 563 ( 29 S.E. 271); English v. Little, 164 Ga. 805 ( 139 S.E. 678); Bond v. Harrison, 176 Ga. 568 ( 168 S.E. 604). It was error to grant the injunction, notwithstanding the fact that under the pleadings it appeared that the title was in the plaintiffs and that the defendant had none. The answer having been stricken, we presume that on the call of the appearance docket the case was marked in default. Under the record as it stands, plaintiffs are entitled in due course to appropriate relief, but the law denies them the right to a mandatory injunction.
Judgment reversed in part and affirmed in part. All the Justices concur.