Brown v. Martin

• Decision Date: 09 January 1912
• Parties: BROWN et al. v. MARTIN et al.
• Court: Georgia Supreme Court

73 S.E. 495

137 Ga. 338

BROWN et al. v. MARTIN et al.

Supreme Court of Georgia

January 9, 1912

Syllabus by the Court.

An action under Civil Code 1910, § 3666, by a remainderman against a life tenant, to have the estate of the latter declared forfeited and the remainderman put in possession because of waste committed by the tenant, is a suit "respecting titles to land," and the venue thereof is the county in which the land involved is located.

None of the grounds of demurrer were well taken, and the court erred in dismissing the petition.

Error from Superior Court, Calhoun County; Frank Park, Judge.

Action by Herbert Brown and others against R. B. Martin and another. Judgment for defendants, and plaintiffs bring error. Reversed.

M. C Edwards, for plaintiffs in error.

Hawes & Pottle, for defendants in error.

HILL J. (after stating the facts as above).

There is no merit in the first and second grounds of the demurrer. Acts of waste on the part of the life tenant, of the character alleged in the petition, would give the remaindermen the right to bring an action to declare a forfeiture of the estate of the life tenant, as provided for in Civil Code 1910, § 3666. In view of the recital of the court, in his order quoted in the statement of facts, that by agreement both parties treated the decree referred to in the petition as though it were a part thereof, the third ground of demurrer will be considered as having been waived. It might be here remarked, however, that this decision, in its entirety, is made without reference to the decree, as it does not appear to have been actually attached to the petition and was not brought to this court. This statement is made, in view of the fact that the plaintiffs may have been parties to the decree and bound thereby, and it may have contained provisions which would affect their rights with respect to the present litigation. There is no merit in the fourth ground of demurrer. Paragraph 1 of the petition gives the numbers of the land lots involved, and this description, taken in connection with the allegation elsewhere in the petition that the property is situated in Calhoun county, sufficiently identifies the land referred to, or can be made to do so when aided by parol testimony.

This brings us to the fifth and last ground of the demurrer, by which the defendant Martin challenges the jurisdiction of Calhoun superior court with respect to him. Counsel in their briefs largely deal with the case on the theory that it is an equitable proceeding, and should be located in the county of his residence, because he is the defendant against whom substantial relief is prayed; however, counsel for the plaintiff in error does insist that the suit is one respecting title to land, and therefore properly brought in Calhoun county, where the land in controversy is situated. In order to determine the venue of the suit, it is important to classify the action. While the petition does not in terms so state, the suit evidently is brought under the statute of this state providing for a forfeiture in behalf of the remainderman against the life tenant in the event the latter wastes the estate, which statute is hereinafter copied. Originally at common law an action of waste was maintainable only against the holder of the legal estate of a guardian in chivalry, or tenant in dower or by the curtesy, on the theory that, this class of estates being creatures of the law, the law would protect the inheritance of the heir by affording him a remedy for waste committed. No action could be maintained against the holder of an estate for life or for years, since they were created by the demise or lease of the owner, and it was deemed that his failure, when granting the estate, to provide against waste by the tenant, constituted an act of neglect on his part, the consequences of which he would be left to suffer. 2 Blackstone Com. 283. The statute of Marlbridge (52 Hen. III, c. 23) extended the common-law liability, so as to make it apply to tenants of the last-named class, and to make them liable for full damages resulting from waste; and the statute of Gloucester (6 Edw. I, c. 5) gave a more stringent remedy in such cases by a writ of waste, under which the tenant was liable to forfeiture of the thing wasted and treble damages. 2 Bl. Com. 283-284; 1 Reeves on Real Property, § 558; Roby v. Newton, 121 Ga. 679, 49 S.E. 694, 68 L.R.A. 601. In Parker v. Chambliss, 12 Ga. 235, it was held: "In this state, a tenant in dower is liable for waste committed on the estate, but she does not thereby forfeit her estate, and treble damages as provided by the statute of Gloucester. The remedy against her is by action on the case, in the nature of waste, to recover the actual damage done to the estate, or by an injunction to restrain her from committing waste, when necessary, on a proper case made." In the opinion Judge Warner, after pointing out that we had adopted the common and statute law of England only where "properly adapted to the circumstances of the inhabitants of this state," and quoting Chancellor Kent to the effect that the writ of waste had gone out of use, and special action on the case in the nature of waste had superseded the common-law remedy, on page 238, said: "We therefore adopt and recognize the principles of the common law including the statute of Gloucester, so far as to make the tenant in dower liable for waste committed, but reject the harsh and penal remedy provided by that statute." This decision was made in 1852.

Code 1863, § 2235 (which is identical in language with section 3666 of the Code of 1910), contained the following provisions: "The tenant for life is entitled to the full use and enjoyment of the property, so that in such use he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. For the want of such care, and the willful commission of such acts, he forfeits his interest to the remainderman if he elects to claim immediate possession." In Dickinson v. Jones, 36 Ga. 97, a case of injunction to restrain threatened waste, it was assumed that the statute of Gloucester was of full force in Georgia; but in Woodward v. Gates, 38 Ga. 205, 212, it was pointed out that the apparent holding in the Dickinson Case was obiter, no question of forfeiture being there involved, and the true rule in Woodward v. Gates was declared to be that the effect of the adoption of the Code of 1863 was that (page 213), "in case of waste, the tenant for life shall forfeit his interest to the remainderman, if he elects to take immediate possession. But the rule of the statute of Gloucester as to treble damages is not still adopted." And this decision was construed and followed in Belt v. Simkins, 113 Ga. 894, 39 S.E. 430. It appears, therefore, that the present statute (Civil Code 1910, § 3666), quoted supra, is declaratory, and at the same time restrictive, of the common law, and that the right of action thereunder is purely an action at law. What was the nature of this action at common law? Blackstone says: "This action of waste is a mixed action; partly real, so far as it recovers land, and partly personal, so far as it recovers damages." 2 Bl. Com. 228; 3 Bl. Com. 118. It would seem, therefore, that, our statute having eliminated the treble damages feature, and retained only the forfeiture provided for by the common law, an action brought under such statute would be a real action.

The suit in the present case is based purely on this statute. It is in no sense an equitable action, and no equitable features are involved. The allegations of the petition, simplified are to the effect that the life tenant has been guilty of acts of waste within the meaning of the statute, and thereby rendered his estate subject to the forfeiture, and that the remaindermen elect to have such forfeiture declared and to take immediate possession of the estate. The prayers of the petition all seek relief within...