Heath v. Miller

• Decision Date: 08 February 1944
• Docket Number: 14756.
• Citation: 29 S.E.2d 416,197 Ga. 443
• Parties: HEATH et al. v. MILLER et al.
• Court: Georgia Supreme Court

29 S.E.2d 416

197 Ga. 443

HEATH et al. v. MILLER et al.

No. 14756.

Supreme Court of Georgia

February 8, 1944

Rehearing Denied March 9, 1944.

Syllabus by the Court.

1. When there is a conflict between the recitals in a bill of exceptions and the record, the record must prevail. Consequently, where certain persons are named as parties plaintiff in the bill of exceptions and the record discloses that they are not named in the petition as parties an any capacity, they can not be considered as parties to the case.

2. Although a general demurrer is rarely available where an action to recover land is in the common-law or fictitious form, if it appears from the face of the petition that the lessor or plaintiff does not have title to the property sought to be recovered and is not entitled to its possession the petition is subject to dismissal on general demurrer.

(a) While in an ejectment action in the common-law form an attached abstract of title is not a part of the petition, the plaintiff may make it a part thereof by either incorporating it in the body of the petition, or by reference or otherwise.

(b) Thus, where a petition in ejectment in the common-law form is accompanied by a 'supplemental petition,' in the body of which an abstract of title to the property sued for is incorporated in substance, such 'supplemental petition' with the incorporated abstract of title becomes a part of the petition in ejectment.

(c) Where it appears from such petition as a whole that the persons in whom the demise is laid, had conveyed away their whole title to the property before the action was brought and no demise is laid in the person holding title to the property as alleged, such petition was subject to dismissal on general demurrer.

3. Although the demurrer of one of several joint defendants inures to the benefit of all defendants where it goes to the merit and substance of the whole petition and challenges the plaintiff's right to any relief, such rule is not applicable where the demurrer does not challenge the plaintiff's right to any relief, and only alleges that the petition fails to set forth a cause of action against the demurring defendant.

This action for the recovery of land is in the common-law form of ejectment, sometimes referred to as the fictitious form. It proceeds in the name of John Doe as petitioner against Richard Roe, casual ejector, who is alleged to have damaged petitioner in the sum of $3,000. The demise to petitioner of certain described lands is alleged to have been made in March, 1923, from J. A. Heath, Mrs. Eunice Peed, W. B. Heath, A. G. Heath, Geo. M. Heath, and Mrs. Leila Moore Heath and Mrs. Elizabeth Heath Singletary, the latter two being the wife and daughter respectively and the only heirs of E. H. Heath, deceased, all of whom are all the heirs of Geo. A. Heath, deceased, 'except petitioners deceased.' Petitioner entered upon the leased premises, and thereafter, on October 31, 1939, was ousted and ejected by Richard Roe from said lands. Since the eviction the defendants have received the rents and profits from the use of said lands of the value of $1,000 per year. The issuance of process and second originals was prayed. With the foregoing declaration, another petition denominated as a 'supplemental petition' was filed for the purpose of showing the relation between the parties to the action. In this supplemental petition it is averred in substance that on or about February 10, 1909, J. A. Heath and E. H. Heath, some of the plaintiff's lessors, executed and delivered to J. T. Parker their bond for title to the lands described in the petition, taking notes for the purchase-money, two of which are past due and unpaid since December 1, 1911. Parker refuses to surrender the property, or to pay the balance of the purchase-money, claiming the statute of limitations against the debt. In March, 1923, the heirs of Geo. A. Heath, deceased, deeded the property described in the declaration, 'together with other property, to petitioner's deceased, Mrs. Corrie H. Ewing, and petitioners, as representatives of her estate, stand in the place of said heirs of Geo. A. Heath;' and Parker had knowledge of the deed at the time it was made. It is further averred that in the fall of 1941 Parker, while pretending to negotiate with petitioners for a settlement of the balance due, with the aid of O. L. Miller, Chas. W. Moore, and Tindall Smith, a colored saw-mill man, all of Talbot County, trespassed upon said lands, cutting timber, removing part of it and converting it to their own use, and leaving part upon the premises to waste; that they refuse to pay petitioner for the value thereof; and that Parker and his agents have collected the rents and profits from the land, converted the same to their own use, have refused to pay the taxes assessed against the land for several years, and have left the improvements thereon in disrepair, all to the damage of petitioner. The prayers are: (1) For process and service; (2) that title to the land, free of the bond for title or other claim, be decreed in petitioners; that the bond for title be surrendered and cancelled, and if it is lost or cannot be produced, copy thereof be established and cancelled; (3) that petitioner recover of the defendants mesne profits, the full value of the timber destroyed and appropriated, and damages for trespass, including punitive damages and attorney's fees. Process and notice to defend were directed to Booker T. Lockhart, J. T. Parker, O. L. Miller, Chas. W. Moore, and Tindall Smith, all of whom except Parker were served. To the declaration and supplemental petition Miller filed special, and Smith filed both general and special demurrers. The judge sustained the 'general demurrers filed by defendants,' and dismissed the petition. In the bill of exceptions assigning error on this judgment, in addition to those named in the declaration as lessors or the real plaintiffs, Mrs. M. M. Simmons and Chas. T. Stewart as administrators of the estate of Mrs. Corrie H. Ewing, deceased, are named as plaintiffs in error.

S. T. Allen, of Atlanta, and R. S. Foy and C. W. Foy, both of Butler, for plaintiffs in error.

G. R. Jacob, of Talbotton, and John G. Cozart, of Columbus, for defendants in error.

WYATT, Justice (after stating the foregoing facts).

1. Mrs. M. M. Simmons and Chas. T. Stewart, as administrators of the estate of Mrs. Corrie H. Ewing, deceased, are designated in the bill of exceptions, along with other named persons, as plaintiffs in error, and are otherwise therein referred to as parties to the case, but the record shows that they are not...