Southall v. Carter, 27194

• Decision Date: 15 June 1972
• Docket Number: No. 27194,27194
• Citation: 229 Ga. 240,190 S.E.2d 517
• Parties: Mrs. J. M. SOUTHALL v. Marie S. CARTER.
• Court: Georgia Supreme Court

Page 517

190 S.E.2d 517

229 Ga. 240

Mrs. J. M. SOUTHALL v. Marie S. CARTER.

No. 27194.

Supreme Court of Georgia.

June 15, 1972.

John R. Bennett, Ed G. Barham, Valdosta, for appellant.

J. Lundie Smith, Valdosta, for appellee.

Syllabus Opinion by the Court

GUNTER, Justice.

Appellant brought an action in Lowndes Superior Court against defendant-appellee seeking partition of land in Lowndes County owned by them as equal tenants in common. The defendant was a resident of Echols County, and she filed a motion to dismiss the action for improper venue and lack of jurisdiction in the Superior Court of Lowndes County, contending that the statute, Code § 85-1504, which says that a partition action may be brought in superior court in the county where the land is situated, is unconstitutional.

The trial court agreed with the appellee, found the statute unconstitutional, and dismissed the appellant's action. The trial judge's reasoning was that a partition action is not one 'respecting titles to land' within the realm of Code Ann. § 2-4902, Const. art. VI, § XIV, par. 2, but is in the category of 'all other civil cases' provided for under Code Ann. § 2-4906, Const. art. VI, § XIV, par. 6, and must be tried in the county where the defendant resides.

We hold that the trial court erred, and the judgment below must be reversed.

Our Code § 85-1504 which says that an applicant for partition 'may apply to the superior court of the county in which such lands and tenements are situated' was codified from the provincial Act of 1767 when this State was a colony. It has therefore been with us for some time with only two minor changes by our Legislature in 1900 and 1920. The case at bar appears to be the first case that has raised the issue that this old statute is in conflict with the Georgia Constitution.

In Douglas v. Johnson, 130 Ga. 472, 60 S.E. 1041 this Court said: 'The venue of a statutory proceeding for the partition of land is the county where the land lies. Civil Code § 4786.' That case was decided in 1908, and there is no indication that the constitutional issue was even raised.

In the case of Anderson v. Anderson, 151 Ga. 518, 107 S.E. 334, decided in 1921, this court held that a statutory partition proceeding does not involve the title to land, and that the Court of Appeals, not the Supreme Court, has jurisdiction on appeal. To the same effect is the case of Nash v. Williamson, 212 Ga. 804, 96 S.E.2d 251 which was decided in 1957. Neither of these cases made any reference to the statute which placed venue in such a proceeding in the county where the land is situated; and neither of these cases made any reference to any conflict between this venue statute and the venue provisions in our Constitution.

We must therefore squarely face and decide the issue, plainly and clearly raised here, whether a partition action is one 'respecting titles to land' which our Constitution (Code Ann. § 2-4902) says shall be tried in the county where the land lies, or whether a partition action falls in the category of 'all other civil cases' (Code Ann. § 2-4906). If it is of the former, then our venue statute is constitutional; but if it is of the latter, then our venue statute offends the constitutional provision, and the statute must be stricken down.

In the old case of Adams v. Lamar, 8 Ga. 83, this court said at page 91: 'In this State, by the Act of 1767, the mode of partitioning lands, held in coparcenary, joint tenancy and tenancy in common, is prescribed. It is by petition to the Superior Court, and exhibition of title. The Court is required to examine the petitioner's title, and thereupon to issue a writ of partiton. There must be a legal title in the applicant-he must show a seizin in coparcenary, joint tenancy or tenancy in common. The partition, when made, becomes the judgment of the court, and, therefore, without more, the partitioned property vests; and so it is by the Common Law writ of partition.'

In the case of Griffin v. Griffin, 33 Ga. 107, decided in 1861, this Court said: '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 the case of Childs v. Hayman, 72 Ga. 791, 799, this Court said: 'But where circumstances exist, rendering a sale necessary to effect a partition, all the rights to object are equally reserved to the parties to the proceeding, as was distinctly recognized by this court in Tucker v. Parks, 70 Ga. 414. This position is fortified by the requirement that the parties shall execute the title to a purchaser at such a sale, and if they fail or...