Owenby v. Stancil

• Decision Date: 29 March 1940
• Docket Number: 13002.
• Citation: 8 S.E.2d 7,190 Ga. 50
• Parties: OWENBY et al. v. STANCIL et al.
• Court: Georgia Supreme Court

8 S.E.2d 7

190 Ga. 50

OWENBY et al. v. STANCIL et al.

No. 13002.

Supreme Court of Georgia

March 29, 1940

Syllabus by the Court.

1. Equity cases must be brought in the county in which resides a defendant against whom substantial equitable relief is sought. 'Cases respecting title to land' must be brought in the county in which the land (or a part thereof in case of a single tract) lies. The phrase 'cases respecting title to land,' as used in this context, means actions at law, such as ejectment or statutory substitutes therefor, in which the plaintiff relies on legal title to recover possession of the land or of the land and mesne profits. It does not include actions in which the plaintiff must seek the aid of

equity to perfect his title.

2. There is a distinction between suits to establish title to land or to establish the evidence of title, and suits to recover the land upon legal title; the former being suits in equity, and the latter actions at law.

3. The common test as to whether a suit to recover land is one of ejectment simply and is a 'case respecting title to land' within the purview of the venue provisions of our constitution and Code is whether the plaintiff can recover on his title alone or whether he must ask the aid of a court of equity in order to recover.

4. In proceedings for the appointment of a guardian taken under Code, § 49-604, where the required ten days notice is given to the three nearest relatives it is not necessary that an affidavit be made that the person for whom a guardian is sought is violently insane and is likely to do himself bodily injury.

5. Nor is it necessary that any service of the application be made on such person or a guardian ad litem be appointed, the notice contemplated by the statute being the mandatory requirement that the commission appointed by the ordinary examine such person by inspection.

6. In a suit in ejectment to recover land judgment of the ordinary appointing a guardian for deceased who under the provisions of the Code acted as the administrator of the estate of the deceased and as such sold the property sued for cannot be collaterally attacked for defects not appearing on the face of the record.

7. Whatever powers a court of equity may have to permit an attack on such a judgment, they cannot be invoked if none of the parties against whom substantial relief is prayed are residents of the county in which the suit is brought.

8. The petition in the present case was properly construed as one seeking to establish title to the land and not to recover on legal title and was properly dismissed for the reason that none of the defendants against whom substantial equitable relief was sought were residents of the county in which the suit was brought.

9. The notice to the nearest relatives of an alleged mental incompetent, required by the Code, § 49-604, may be given either before or after the application is actually filed provided it is given ten days before the commission issues and gives notice of the time the commission is to be issued.

Mary F. Owenby and L. J. Owenby brought an action in Colquitt superior court against W. R. Stancil, J. W. Lacy Etowah Bank, J. H. Southwell, and W. C. Little, denominating it in the opening clause of the petition as a 'complaint for land and for ancillary relief.' The substance of the allegations is as follows: Stancil, Lacy, and Etowah Bank are residents of Cherokee County, and Southwell and Little are residents of Colquitt County. Mary F. Owenby is the widow of J. W. Owenby, who died intestate in March, 1938, owning a described tract of land in Colquitt County, and who resided in Colquitt County from 1926 until the time of his death. In February, 1939, Mary F. Owenby applied for, and in March 1939, there was set apart to her by judgment of the court of ordinary of Colquitt County, a year's support in said land. Thereupon she conveyed to the other plaintiff the land, but reserved to herself a life-interest therein. (No point is made in the record as to the joinder of the remainderman having no present right of entry or possession, with the life-tenant claiming present rights of entry and possession.) The rental value of the premises is alleged to be $200 per year. The defendants are alleged to be in possession; the relationship between them being that Little is in actual possession as sharecropper of Southwell, who rents the land from Stancil for $200 per year. The bank holds a deed to the property to secure a debt due to it by Stancil. Stancil claims title to the land under a deed dated August 1, 1938, from J. W. Lacy purporting to act as administrator of the estate of J. M. Owenby. It is alleged that J. W. Lacy was never such administrator, because of the facts that in March, 1937, and for several previous months, Owenby was insane and still residing in Colquitt County; that an application was made to the ordinary of Colquitt County for appointment of a lunacy commission to inquire into his mental condition; but that, about a week thereafter and while that application was pending, Stancil and his wife (a daughter of the deceased) and Lacy, with knowledge of the lunacy proceedings, came to Owenby's home in Colquitt County and took him to Stancil's home in Cherokee County; that Owenbywas hopelessly insane and remained so until the time of his death, and the object of Stancil and Lacy in taking him away was to get possession of his property, and, by fraudulent representation to the ordinary of Cherokee County as to his residence, to have Lacy appointed as his guardian, and thereby get possession of his property, as they later did; that on March 29, 1937, Stancil filed with the ordinary of Cherokee County an application for a guardianship for Owenby alleging that 'said J. M. Owenby, of said county, is an imbecile and incapable of managing his estate, and is liable to have a guardian appointed,' the application being verified by affidavit of Stancil. On the same date the ordinary granted the usual citation, and issued an order directing Dr. James R. Boring to examine J. M. Owenby and make a report to the ordinary 'in writing as to the truth of the affidavit of W. R. Stancil relative to the mental condition of said J. M. Owenby.' On the same date the ordinary of Cherokee County ordered that a commission issue, and it was issued to 'James R. Boring, physician, J. F. Covington, physician, John W. Collins, attorney,' requiring them to make an examination of J. M. Owenby and to report to the ordinary as required by law in such cases. On that date Dr. Boring reported in writing to the ordinary, but not under oath, that 'the affidavit of W. R. Stancil in reference to the mental condition of J. M. Owenby is true.' On the same day the commission in writing reported, over their signature, 'We do find the said J. M. Owenby to be an imbecile and incapable of managing his estate, from old age.' On the same date the ordinary entered an order appointing J. W. Lacy guardian of J. M. Owenby.

It is alleged, that the commission made their report without having gone in a body to see and examine J. M. Owenby, and without having made any examination of him while assembled as a commission in his presence; that no service was made upon him, and no guardian ad litem appointed for him; nor was any service on any relative of his or on any other person, nor was an acknowledgment of service of said application made by any person, nor was an affidavit made and filed in connection with said application, by any relative, by any physician, or by any other person that Owenby was violently insane or likely to do himself bodily harm. Annexed to the record in the office of the ordinary in Cherokee County is a certain notice dated March 15, 1937, signed by W. R. Stancil, directed to 'Mary Owenby, the wife of J. M. Owenby, Winnie Owenby, Owenby Mullins, Josie Owenby Stancil, and James L. Owenby,' as follows: 'You are hereby notified that I have this day applied to the ordinary of Cherokee County, Georgia, asking that a commission be appointed to examine J. M. Owenby as to his ability to manage his estate, on account of imbecility, and that after the expiration of 10 days, to wit, March 29th, if no objections are filed, said ordinary will appoint a commission to examine said J. M. Owenby; and if found incapable on account of imbecility resulting from old age, a guardian will be appointed for him.' That there appears in the record an acknowledgment dated March 17, 1937, purporting to be signed by all the persons to whom the motion is directed, in these words: 'This is to acknowledge receipt of the above notice, and the undersigned agrees for a commission to be appointed and determine whether or not J. M. Owenby is competent to look after his own affairs. In the event he is found incompetent, we select as his guardian, J. W. Lacy, of Cherokee County, Georgia, and respectfully ask the court to appoint him as such.' Josie Owenby Stancil is the wife of W. R. Stancil.

It is alleged that the signature of Mary F. Owenby is a forgery not being put there by her or with her authority or consent; that the entire guardianship proceeding in Cherokee County was fraudulent and in furtherance of a fraudulent scheme of Stancil and Lacy; that the defendants have no claim of title to the land except under said proceedings; and that those proceedings were void, because (1) that the appointment of Lacy as guardian and the intervening steps, all taking place on the same day, were contrary to law; (2) that no notice was given to the next of kin; (3) that the purported notice was not of 'such application,' but was notice of an intention to make an application; (4) that no affidavit was made that Owenby was violently insane or liable to do himself bodily injury; (5) that no physician...