Chidsey v. Brookes

• Decision Date: 26 February 1908
• Citation: 130 Ga. 218,60 S.E. 529
• Parties: CHIDSEY et al. v. BROOKES et al. BROOKES et al. v. CHIDSEY et al.
• Court: Georgia Supreme Court

60 S.E. 529

130 Ga. 218

CHIDSEY et al.

v.BROOKES et al.

BROOKES et al.

v.CHIDSEY et al.

Supreme Court of Georgia.

Feb. 26, 1908.

1. Ejectment —Pleading —Title to Maintain.

A petition in an action to recover land fails to set out a cause of action where the title of the plaintiff to the premises as therein alleged is insufficient in law to support a recovery.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Ejectment, §§ 165, 166.]

2. Wills — Foreign Wills — Necessity of Probate.

The title to lands in Georgia can only pass by devise where the will has been probated in this state according to the statutes in such cases made and provided.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 572.]

3. Same—Rights of Devisees.

A devisee under a will executed and probated in another state cannot maintain a suit to recover the land adversely held until the will has been probated in this state.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, § 572.]

4. Same.

The ruling in Doe v. Roe, 31 Ga. 593, that "an exemplified copy (conforming to the provisions of the act of Congress) of a testamentary paper, executed, published, probated, and recorded as a last will and testament in the state of Maryland, may he a good muniment of title to real estate in Georgia, even though the will was neither probated nor recorded in this state, " is formally overruled.

5. Error—Decision—Cross-Bill of Exceptions.

"When the Supreme Court has before it both a main bill of exceptions and a cross-bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first; and, if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed."

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by R. L. Chidsey and others against W. W. Brookes and others. Judgment for defendants, and plaintiffs bring error. Defendants assign cross-error. Judgment on cross-bill of exceptions reversed, and main bill dismissed.

R. L. Chidsey, W. B. Chidsey, George B. Chidsey, James Berrien Chidsey, and Sarah Francis Chidsey (the last two by their next friend, George F. Chidsey) filed their petition in the superior court of Floyd county against W. W. Brookes, J. B. Sullivan, and others, as trustees of Shorter College, to recover an undivided one-eighth interest in a described lot of land. It was alleged that each of the petitioners were the owners of an undivided one-fortieth interest In the land described, and that the land was in the possession of the defendants, who refused to deliver possession thereof to petitioners or pay them the mesne profits thereof. Attached to the petition was an abstract of title, beginning with the grant from the state to Ambrose Sanders, and ter minating in a will alleged to have been executed by S. S. Farrer and probated in the court of ordinary of the district of Charleston, state of South Carolina. The abstract of title was by reference made a part of the petition. The petition was amended by attaching as a part thereof a copy of the will of S. S. Farrer, and by alleging that upon its probate and record in the district of Charleston, state of South Carolina, on May 2, 1861, the nominated executors qualified; that they have never qualified as executors in the state of Georgia; that they assented to the devise of the land sued for, as set out in the third and seventh items of the will, and assumed no further control of the land, but delivered possession thereof to the life tenant, to be enjoyed by her and by the mother of the plaintiffs during her life, and by the plaintiffs at the termination of the successor's life estate. The petition was amended in other particulars not necessary to notice. The defendants demurred generally, on the ground that no cause of action was set out In the petition, and specially to certain paragraphs. The demurrer was overruled, and exceptions pendente lite were filed. The defendants answered, denying the title of the plaintiffs and their right to the possession of the land. The case proceeded to trial, and certain documents were allowed In evidence, over the objection of the defendants. To the rulings of the court admitting the same in evidence the defendants excepted pendente lite. At the conclusion of the evidence the court directed a verdict in favor of the defendants. A motion for new trial was overruled, and the plaintiffs excepted. The defendants sued out a cross-bill of exceptions, assigning error upon their exceptions pendente lite.

Denny & Harris and W. M. Henry, for plaintiffs in error.

E. H. Callaway, Dean & Dean, and J. Branham, for defendants in error.

ATKINSON, J. (after stating the facts as above). "When the Supreme Court has before it both a main bill of exceptions and a cross-bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first; and, if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed." Rives v. Rives, 113 Ga. 392, 39 S. E. 79; Cheshire v. Williams, 101 Ga. 814, 29 S. E. 191. The demurrer in the present case raises the question of the right of the plaintiffs to recover on the title alleged in the petition. In the recent case of Dugas v. Hammond (Ga.) 60 S. E. 268. this court held that where the plaintiff set forth in his petition the title upon which he relied to recover the land, and that title was insufficient in law, the petition should be dismissed upon demurrer. It appears from the petition in the present case that the plaintiffs base their right to recover upon a will pro-bated in. the state of South Carolina, but which had never been probated or admitted to record in any court in this state. The question is therefore presented of the right of the plaintiffs, whose title is dependent upon a foreign will which had never been probated in this state, to maintain and prosecute an action for the recovery of land.

It is an acknowledged principle of law that the title and disposition of land is exclusively subject to the laws of the state where it is situated, and which alone can prescribe the mode by which title can pass from one person to another. U. S. v. Crosby, 7 Cranch (U. S.) 115, 3 L. Ed. 287; Kerr v. Moon, 9 Wheat (U. S.) 565, 6 L. Ed. 161; McCommick v. Sullivant, 10 Wheat. (U. S.) 192, 6 L. Ed. 300; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049; Campbell v. Porter, 162 U. S. 478, 16 Sup. Ct. 871, 40 L. Ed. 1044; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41. In this state a paper purely testamentary in character must be probated before it will serve to pass title. Johnson v. Sirmans, 69 Ga. 617. If the will upon which the plaintiffs relied to...