Griffin v. Griffin

• Court: Georgia Supreme Court
• Writing for the Court: HILL, J. (after stating the facts as above).
• Citation: Griffin v. Griffin, 153 Ga. 547, 113 S.E. 161 (Ga. 1922)
• Decision Date: 13 June 1922
• Docket Number: 2838.
• Parties: GRIFFIN ET AL. v. GRIFFIN.

113 S.E. 161

153 Ga. 547

GRIFFIN ET AL. v. GRIFFIN.

No. 2838.

Supreme Court of Georgia

June 13, 1922

Syllabus by the Court.

Where a tenant in common applies to the superior court to have certain land so held partitioned, and to have an accounting between the tenants in common under section 5358 of the Civil Code of 1910, such a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc.

Where application by petition is made to partition lands between tenants in common under section 5358 of the Civil Code of 1910, the petition is not demurrable upon the ground merely that there is no process, nor prayer for process, attached to such petition. Notice and service in such cases is provided for under section 5360 of the Code.

Under section 3396 of the Civil Code of 1910, homestead property set apart to a wife, or wife and minor children, etc., upon the termination of the homestead estate reverts to the estate from which it was set apart, unless it is sold or reinvested in pursuance of the provisions of the Code.

An affidavit filed by a guardian for the purpose of taking a case to the Supreme Court in forma pauperis, which alleges that the ward, because of his poverty, is unable to pay the cost in the case, and that his counsel has advised him that he has good cause for writ of error, is good as against the objection that the affidavit should allege that the "estate" which the guardian represents is unable to pay the cost, etc. The case of Barfield v. Hartley, 108 Ga. 435, 33 S.E. 1010, considered and distinguished.

Additional Syllabus by Editorial Staff.

Under Civ. Code 1910, § 3396, where property is set apart to a wife, or wife and minor children, as a homestead, the death of an heir before the termination of the homestead does not defeat his interest, and it descends to his heirs.

Under Civ. Code 1910, § 3396, where land was set apart to a wife and minor children as a homestead, the division of the land by the wife and some of the children, or its sale by them even if valid under Const. art. 9, § 9, par. 1, did not defeat the interest of another child upon termination of the homestead estate.

Error from Superior Court, Putnam County; Jas. B. Park, Judge.

Suit by Sidney Griffin and another against J. B. Griffin. Judgment for defendant on demurrer, and plaintiffs bring error. Reversed.

R. C Jenkins and S. T. Wingfield, both of Eatonton, for plaintiffs in error.

M. F Adams and W. T. Davidson, both of Eatonton, for defendant in error.

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

1. Under the acts of 1767 and 1900, now codified in section 5358 of the Civil Code of 1910, where two or more persons are common owners of lands and tenements in this state, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements are to be divided, any one of such common owners may apply to the superior court of the county in which such lands and tenements are situated, at term time, or the judges thereof at chambers, for a writ of partition, setting forth plainly and distinctly the facts and circumstances of the case, describing the premises to be partitioned, and defining the share and interest of each of the parties therein. The sections of the Code immediately following section 5358 provide by whom the applications for partition may be made, notice to other parties concerned, the return of the partitioners, defenses, when and by whom and how made, when the return shall be made, the judgment of the court, etc. The petition in the present case seems to have been drawn in substantial compliance with the requirements of section 5358 et seq. of the Code, supra. Under section 3727 of the Civil Code of 1910, it is provided that, if one tenant in common receives more than his share of the rents and profits, he is liable therefor as agent or bailee of the other cotenants, and that in equity the claim for such indebtedness is superior to liens placed on his interest by the tenant in possession receiving the profits. The plaintiffs in the present case are asking for an accounting between the cotenants. But grounds 5 and 7 of the demurrer challenge the right of the plaintiffs to an accounting for profits and recovery of possession of the land, on the ground that the petition shows that the defendant is in possession of the land adversely to the plaintiffs, and because the statutory proceeding for partition, etc., is not a remedy appropriate to the recovery of land so held adversely. We cannot agree to these contentions. As early as the case of Griffin v. Griffin, 33 Ga. 107, this court held that--

"Upon an application to the superior court for partition of land by joint tenant, or tenant in common, under the act of March 26, 1767, it is proper for that court, in case of a contest, to go into a consideration of the title, both legal and equitable, and award or refuse the writ, according to the proof made."

In delivering the opinion of the court Lyon, J., said:

"The proceedings, under that act [1767] for partition of lands, are in the nature of a proceeding at equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, in respect to their respective titles, and awarding a partition, according as he shall find the parties entitled, as fully and completely as if it were a bill in chancery for that purpose. If there be a dispute as to the facts, as there is likely to be in a case like this, the court can direct an issue to be made up, and at once tried by a jury."

Under the pleadings in the instant case the title to the land in controversy is involved. See Civil Code 1910, § 5363. And see Hamby v. Calhoun, 83 Ga. 317, 9 S.E. 831; Jackson v. Deese, 35 Ga. 84, 91; Hall v. Collier, 146 Ga. 815, 817, 92 S.E. 536; Brown v. Mooney, 108 Ga. 331, 33 S.E. 942; Shiels v. Stark, 14 Ga. 429 (8).

Since the decision of the Griffin Case, supra, the Legislature in 1887 (Acts 1887, p. 64) passed what is known as the "Uniform Procedure Act," and it is now embodied in part in section 5406 of the Civil Code of 1910. That section of the Code provides that:

"The superior courts of the state, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require."

See De Lacy v. Hurst, 83 Ga. 229, 230, 9 S.E. 1052; Georgia R., etc., Co. v. Tice, 124 Ga. 462, 52 S.E. 916, 4 Ann.Cas. 200. From the foregoing authorities we are of the opinion that the court erred in sustaining grounds 5 and 7 of the demurrer.

2. The case of Cock v. Callaway, 141 Ga. 781, 82 S.E. 286, is cited by the defendant in support of the fourth ground of the demurrer, which is that "there is no process nor prayer for process" in plaintiffs' petition. It is true that in that case this court held that--

"While, under statutory proceedings to obtain a partition, in extraordinary cases not expressly provided for, the court may frame its proceedings and order so as to meet the exigencies of the case, this does not give to the statutory procedure the full scope of an equitable proceeding with regular process and service. Such a statutory proceeding cannot be made to serve the purpose of partitioning a large tract of land with certain alleged tenants in common with the applicant, and at the same time of recovering possession from various persons who hold different parts of the land adversely, not under the alleged tenants in common, and also of having an accounting with them for the share of the rents claimed by the applicant."

The facts of the Callaway Case are different from the facts of the present case. There the first life tenant, the wife of the testator, had died, as had also James Benton Cock, one of the two life tenants who held after her death. The only other life tenant, Garnett A. Sneed, "left this section for parts unknown to petitioner 30 or more years ago, and petitioner is not advised whether he is living or dead, or whether, if dead, he was survived by a wife or child or children, or whether there is any living wife or child or other lineal heirs at law. The death of James Benton Cock occurred in September, 1912, and he was survived by the petitioner, his only child and heir at law. If Garnett A Sneed is still in life, he is a cotenant of the petitioner in the land" sought to be partitioned. The lands in that case were alleged to be in possession of certain named persons in severalty "each of whom claims under one of the life tenants in said will." Garnett A. Sneed, his wife and children, and his lineal heirs at law, the residences and names of all of whom were alleged to be unknown to petitioner in that case, were by order of the court served by publication. The defendants in that case were not tenants in common with the petitioner, nor were those in possession of the land, holding under one of the life tenants, tenants in common with the applicant, so as to bring them within the provisions of section 5358 of the Civil Code of 1910, under which the proceeding was brought. In a case like the Callaway Case, under its peculiar and complicated state of facts, it was held that only a court of equity could furnish adequate relief. It will be observed also that in the Callaway Case the learned justice who wrote the opinion of the court did not refer to the case of Griffin v. Griffin, supra, and similar ca...