Foster v. Rowland

• Decision Date: 10 November 1942
• Docket Number: 14356.
• Parties: FOSTER v. ROWLAND.
• Court: Georgia Supreme Court

22 S.E.2d 777

194 Ga. 845

FOSTER v. ROWLAND.

No. 14356.

Supreme Court of Georgia

November 10, 1942

Syllabus by the Court.

1. In a statutory action for land the object of annexing an abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied on at the trial; and defects in the abstract will not render the petition demurrable.

2. A plaintiff in an action for land, in statutory form, can state in the petition facts showing title, instead of annexing an abstract of title.

3. The abstract of title is not a part of the petition in a statutory action for land, unless voluntarily made so by the pleader. However, if the petition and the abstract incorporated therein or attached thereto and expressly made a part thereof shows that the plaintiff limits his claim of title to that shown by the abstract, the petition is demurrable if the abstract fails to show a good chain of title in the plaintiff.

4. An allegation that a party is the owner of specified realty is an allegation of an ultimate fact, and not a conclusion of law.

5. Where in a statutory complaint for land, and for timber cut and removed therefrom, the plaintiff in his petition unqualifiedly alleges in one paragraph that he is the owner of land and in another paragraph alleges that he and his predecessors in title have been in peaceable possession of the land for more than thirty years before the filing of the petition, which also avers that the defendant about two years and three months previously to the filing of the petition took possession of the land and cut and removed timber therefrom, although the plaintiff alleges that his title is derived through certain persons, and, responsive to defendant's demurrers, by amendment to the petition the plaintiff alleges in more detail how his title is derived whether or not the amendment is necessary, his petition as amended does not show such reliance on and limit of his claim of title by the abstract as would authorize a dismissal of the action on the grounds of demurrer ruled on.

T D. Foster filed a petition against G. L. Rowland, seeking to recover certain land and a judgment for timber alleged to have been cut and removed therefrom. After naming the parties and averring jurisdiction, the petition alleged: '2. Plaintiff is the owner of a tract of land described as follows: [describing 2.63 acres sued for]. 3. Plaintiff's title is derived through the Calhoun National Bank, J. W. McBrayer, and the D. N. McBrayer estate, and predecessors in title, who have owned and been in possession thereof for more than thirty years. 4. Defendant has within the last two years and three months taken possession of said land, and cut and removed valuable saw timber therefrom, in the amount of twenty-five thousand feet, of the value of $8.00 per thousand feet; and said defendant refuses to surrender possession of said land to this plaintiff on demand, or to pay him for the timber so cut by him. 5. Plaintiff is entitled to recover from defendant a verdict and decree for said land, and also for $200 principal, and interest thereon from January 1, 1940, for the timber cut by him and removed from said land.' These allegations were followed by prayers for recovery of the land, and for judgment against the defendant for the timber cut and removed. The defendant demurred to the petition, on the grounds: (1) That no cause of action is set out, (2) that paragraph three of the petition is a conclusion of the pleader and insufficient to show title; and (3) to the 'petition as a whole,' because there is not set out any abstract of title of the plaintiff. By amendment the plaintiff added to the petition allegations as follows: '3a. Plaintiff shows that his title to said land is derived as follows: 1. J. W. McBrayer to the Calhoun National Bank, December 30, 1921, conveying one half interest in lands sued for, and other land; deed recorded in book No. 1, page 93. 2. J. W. McBrayer to the Calhoun National Bank, July 15, 1924, conveying one half interest in lands sued for, and other land, book No. 3 page 257. 3. Calhoun National Bank (as attorney in fact for J. W. McBrayer) to the Calhoun National Bank, August 4, 1925, conveys one half interest in the lands sued for and other lands, book No. 4, page 136. 4. J. H. Gordon, as admr. of D. N. McBrayer estate, to the Calhoun National Bank, June 17, 1928, lands sued for and other lands, book No. 6, page 200. 5. The Calhoun National Bank to T. B. Foster, January 12, 1929, book No. 6, page 296, lands sued for and other lands. 3b. Plaintiff shows that all references above to book records refers to books in office of clerk of Gordon Superior court, and the deed records of said county. 3c. Plaintiff shows that J. W. McBrayer and D. N. McBrayer had been in peaceable possession of said land sued for, for many years prior to 1921. He shows that this plaintiff and his predecessors in title, as shown in the abstract above, for more than twenty years, continuously up to the time defendant wrongfully entered said land on or about the 1st of July, 1939, and cut and removed the timber as alleged in his original petition.'

The amendment was allowed and filed. The court ordered as follows: 'Upon consideration of the within demurrer the plaintiff is required to amend, to meet the criticism of special demurrer, within ten days from this date, or the petition of plaintiff is dismissed. Ruling on general demurrer reserved.' The plaintiff filed no further amendment, but excepted to the sustaining of the demurrer.

Joe M. Lang, of Calhoun, for plaintiff in error.

Y A. Henderson, of Calhoun, for ...