Etowah Mfg., Co. v. Alford

• Decision Date: 21 December 1886
• Citation: 78 Ga. 345
• Parties: THE ETOWAH MANUFACTURING, etc. COMPANY v. ALFORD.
• Court: Georgia Supreme Court

78 Ga. 345

THE ETOWAH MANUFACTURING, etc. COMPANY v. ALFORD.

Supreme Court of Georgia.

December 21, 1886

October Term, 1886.

Where in an action of ejectment, a joint demise is laid in the declaration, evidence of a joint interest in the plaintiff's lessors must be given, and without it, there can be no recovery on that demise; and the same rule applies to the statutory form of action when used as a substitue for the action of ejectment.

( a ) A judgment of nonsuit would have been the proper disposition of this case.

( b ) Directions given.

Ejectment. Practice in Supreme Court. Before Judge FAIN. Bartow Superior Court. July Term, 1886.

Reported in the decision.

W. K MOORE; JOHN W. AKIN, for plaintiff in error.

GRAHAM & GRAHAM, for defendant.

HALL Justice.

This was an action the statutory form in favor of four plaintiffs for the recovery of the lot of land in dispute. The abstract of title attached showed no conveyance to the plaintiffs jointly and no deed from the grantee of the land to either of his co-plaintiffs, but it did set forth successive deeds from the plaintiff, Gilbert, to his immediate vendee, and from each successive holder to others named in the abstract and to divers others not so named, who, it was alleged, derived title from and under him. The evidence failed to show any joint right in the plaintiffs, and the judge charged the jury, unless this was done, they could not recover. A verdict was returned in favor of the defendant, and thereupon a new trial was moved on numerous grounds and refused, and to this judgment exception was taken. The single ground above mentioned is decisive of this case, and demanded the verdict. It is well-settled, in an action of ejectment, for which this statutory remedy is a substitute, that if a joint demise be laid in the declaration, evidence of a joint interest in the plaintiff's lessors must be given, and without it there can be no recovery on that demise. 2 Greenleaf's Ev §317; Bohanan et al. vs. Bonn, 32 Ga. 390. The allegations must be sustained by the proof, and if the plaintiff recovers, he must do so on the title he sets out; if evidence of his title be wanting, or if it is deficient in strength, the possession of the defendant will prevail and defeat his recovery.

A judgment of nonsuit would, we think, have been the proper disposition of the case, but no such motion was made by the defendant, and the court ex mero motu did...