Mentone Hotel & Realty Co. v. Taylor
| Decision Date | 12 November 1925 |
| Docket Number | 4878. |
| Citation | 130 S.E. 527,161 Ga. 237 |
| Parties | MENTONE HOTEL & REALTY CO. v. TAYLOR. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The general rule is that, in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title, he must allege and prove possession in himself.
(a) Where the defendant is in possession, the plaintiff has a remedy at law to test his title by an action of ejectment which is ordinarily deemed an adequate remedy, in consequence of which there is no ground for the exercise of equitable jurisdiction, which is based upon the ground that the plaintiff in possession cannot maintain an action at law to test his title.
(b) Ejectment will lie to recover a mine or mineral interests in land to which the plaintiff has title, though another owns the surface, and the plaintiff has never been in possession.
(c) The remedy by petition quia timet to remove a cloud upon title is not intended to supplant the usual remedies at law for testing the superiority of two legal titles, in the absence of supervening circumstances calling for equitable relief.
(d) There are exceptions to the above general rule: (1) In case of wild lands; and (2) where there is a distinct head of equity jurisdiction sufficient to support the action, as where deeds are obtained by fraud or other illegal means.
(e) Where the plaintiff, in a petition quia timet to remove a cloud upon his title, alleged that he was the owner and in possession of the mineral interests in certain lands, and that he and those under whom he claimed had been in adverse possession of the lands for more than 20 years, but he failed to prove those allegations, he should not have been nonsuited, where he further alleged and proved that he and the defendant claimed title under a common grantor; the defendant in his answer admitting that such common grantor formerly owned these lands, and that the defendant's title was derived from a tax sale and sheriff's deed made in pursuance of such tax sale, both of which were void because the levy was grossly excessive and fraudulent.
The principle that, where both parties claim under a common grantor, it is unnecessary to show title back of such common grantor is applicable in the case of a petition in equity to remove a cloud upon the title of a plaintiff.
(a) The defendant by claiming under the plaintiff's grantor admits title in such grantor.
(b) Proof by the plaintiff that he and the defendant claim title under a common grantor, with the admission of the defendant in his answer that such common grantor formerly owned the lands involved, makes a prima facie case that the plaintiff is the true owner of such lands, and establishes sufficient title in the plaintiff to maintain an equitable petition quia timet to remove a cloud upon his title.
The evidence was sufficient to show that the plaintiff had acquired title to the lands involved in this litigation.
The evidence fails to disclose that the plaintiff, after the institution of this suit, had sold this land and parted with its title thereto. This renders it unnecessary for us to decide the question raised by counsel for the defendant whether a plaintiff who sues in equity in his own name and alone to remove a cloud upon his title can, after he has parted with his whole interest in the subject-matter of the litigation, further prosecute the suit.
The sheriff having been made a party defendant by an amendment to the petition, the failure of the plaintiff to make him an original defendant furnished no ground for the grant of a nonsuit.
Error from Superior Court, Chattooga County; F. A. Irwin, Judge.
Action by the Mentone Hotel & Realty Company against J. D. Taylor. Judgment for defendant, and plaintiff brings error. Reversed.
Wesley Shropshire, of Summerville, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.
Denny & Wright, of Rome, and John D. & E. S. Taylor, of Summerville for defendant in error.
HINES J. (after stating the facts as above).
1. The petition alleges that the plaintiff is the owner, and in possession of, the mineral interests in the land lots therein described. It further alleges that petitioner and those under whom it holds have been in the peaceable, notorious, adverse, and continuous possession of said land as bona fide purchasers under recorded deeds of conveyance for a period of 20 years or more. The proof offered by the plaintiff failed to establish the allegations of the petition that the plaintiff was in possession of these mineral interests, and that it and those under whom it claimed had been in adverse possession of these lands for a period of 20 years or more. For this variance between the allegata and the probata counsel for the defendant contends that the court properly granted a nonsuit. Is this position sound? The general rule is that, in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title, he must allege and prove actual possession in himself. Thompson v. Etowah Iron Co., 91 Ga. 538, 17 S.E. 663; Weyman v. Atlanta, 122 Ga. 539, 50 S.E. 492; McMullen v. Cooper, 125 Ga. 435, 54 S.E. 97; Adams v. Johnson, 129 Ga. 612, 59 S.E. 269; Myers v. Mayhew, 32 App. D. C. 205. The reason of this rule is that, where the defendant is in possession, the plaintiff has a remedy to test his title at law by bringing an action in ejectment, which is ordinarily deemed an adequate remedy, and in consequence there is no ground for the exercise of equitable jurisdiction, which is based upon the fact that, where the plaintiff is in possession, he can maintain no action at law to test his title. Thompson v. Etowah Iron Co., supra; 17 Enc. Pl. & Pr. 307. An action of ejectment will lie to recover a mine or mineral interests in lands, to which the plaintiff has title, though another owns the surface, and although the plaintiff has never been in possession. Barnsdall v. Bradford Gas Co., 225 Pa. 338, 74 A. 207, 26 L.R.A. (N. S.) 614; Moragne v. Doe, 143 Ala. 459, 39 So. 161, 111 Am.St.Rep. 52, 5 Ann.Cas. 331; Davison v. Reynolds, 150 Ga. 182, 184, 103 S.E. 248. Some authorities hold that the plaintiff must have entered into possession of such mining rights before he can maintain ejectment for their recovery. 9 R. C. L 834, § 8. It is likewise true that the remedy by petition quia timet to remove a cloud upon title was never intended to supplant the usual and proper remedies at law for testing the superiority of two legal titles, where there are no supervening circumstances calling for equitable relief. Adams v. Johnson, 129 Ga. 611, 59 S.E. 269.
But to the general rule that the plaintiff must be in possession to maintain a bill quia timet there are exceptions. The general rule does not apply in the case of wild lands. Weyman v. Atlanta, supra. Another exception is this: Where there is any other distinct head of equity jurisdiction sufficient to support the action, possession by the plaintiff is not required, but equity will retain the cause and grant relief by quieting the title or removing clouds. 17 Enc. Pl. & Pr. 309. It is one of the established grounds of equitable jurisdiction to cancel deeds obtained by fraud or other illegal means. So in Gilmore v. Hunt, 137 Ga. 272, 73 S.E. 364, this court held:
"Equity will entertain a petition by a married woman to cancel, in the hands of her grantee, a warranty deed improperly procured by duress and in...
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