Thomas v. Stedham
| Decision Date | 15 January 1952 |
| Docket Number | No. 17649,17649 |
| Citation | 68 S.E.2d 560,208 Ga. 603 |
| Parties | THOMAS et al. v. STEDHAM et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A true owner alone can maintain an action to remove a cloud on his title to land, and, in a petition for such purpose, facts must be alleged to show that the title is in the petitioner.
2. The petition by heirs of the grantor in a security deed to cancel such deed as a cloud on their title was insufficient to show paper title in them. Nor did the allegations show that they had acquired prescriptive title by 20 years' adverse possession.
3. It was not error, on sustaining the general demurrer of the resident defendant, to dismiss the petition as against both the resident and nonresident defendants.
This case is here on exceptions to an order sustaining a general demurrer to an equitable petition and dismissing the same.
Mrs. Hester Thomas and others, as the surviving wife and children of W. M. Thomas, brought their petition against Mrs. W. L. Stedham, and L. P. Allen, as Sheriff of Haralson County, alleging that by inheritance they became the owners of a described tract of land in land lot No. 159, in the 17th District of Haralson County, and that there were three outstanding deeds that should be cancelled as a cloud upon their title. It was alleged: There was a purported deed from W. M. Thomas to G. J. Holcombe, dated November 2, 1910; also a quitclaim deed from Bullard, as trustee in bankruptcy of W. M. Thomas, dated March 5, 1925, to the 'estate of G. J. Holcombe,' and a warranty deed dated January 2, 1926, from Mary Holcombe, as administratrix of the estate of G. J. Holcombe, to W. L. Stedham. The deed from Thomas to Holcombe, though in the form of a warranty deed, was in fact a security deed given to secure an indebtedness of $450, and this indebtedness had been listed in the schedule of debts in a bankruptcy proceeding of W. M. Thomas, in which proceeding a discharge was given to him in September, 1925. The deed from the trustee in bankruptcy to the 'estate of G. J. Holcombe' was void, because no grantee, natural or artificial, was named therein, and the deed from Mary Holcombe, as administratrix of the estate of G. J. Holcombe, to the defendant Stedham was void because it was issued without an order of the court of ordinary authorizing the sale of the property. W. M. Thomas died in 1930 in possession of the tract of land described in the aforementioned deeds, and after his death the petitioner, Clarence Thomas, with the consent of the other petitioners, went into possession of said land and has remained in possession, actually working the same as a farm since the death of his father, and the petitioners are the owners as tenants in common of said land by virtue of the laws of descent and distribution; but if the petitioners are not found to have a good record title, they have acquired prescriptive title by reason of the adverse possession of W. M. Thomas and Clarence Thomas for more than 20 years.
The prayers of the petition as against the defendant Mrs. Stedham were: for a cancellation of the three deeds above referred to; to restrain Mrs. Stedham from cutting or removing timber from the property; and for a money judgment 'for the increased value of said land,' if she should be placed in possession of the land. It was further alleged: that the defendant Mrs. Stedham instituted a dispossessory proceeding against the petitioners in Haralson Superior Court, and in January, 1951, a default judgment was taken against Mrs. Thomas, and a writ of possession has been issued by virtue of the judgment and is now in the hands of the defendant sheriff; and that, unless restrained, the sheriff will evict the petitioners from the property described in the deeds sought to be canceled. The prayer against the sheriff was that he be enjoined from executing the writ of possession.
Among the grounds of the general demurrer, was one designated as paragraph 9, which demurred on the ground that the petition shows on its face that the plaintiffs have no right, title, or interest in the premises sued for, and had no legal right to institute these proceedings.
Murphy & Murphy, Bremen, Gray Skelton, J. Robin Harris, Decatur, for plaintiffs in error.
Shirley C. Boykin and Boykin & Boykin, all of Carrollton, C. V. Driver, Buchanan, for defendants in error.
1. The main relief sought by the plaintiffs was the cancellation of a certain deed as being a cloud on their title. A true owner alone can maintain an action to remove a cloud on his title to land; and, in a petition for such purpose, facts must be alleged which show that the title is in the petitioner. Weyman v. City of Atlanta, 122 Ga. 539(1), 50 S.E. 492. Equity will not cancel a deed as a cloud on the title of a petitioner in possession who has no title and whose only relation to the property is possession acquired under circumstances under which no prescription could be based. Crawford v. Crawford, 143 Ga. 310, 85 S.E. 192.
2. Our first inquiry is: Do the facts alleged in the petition show that the plaintiffs have paper title to the land described in the deeds sought to be canceled? They claim title by inheritance from W. M. Thomas, who died in 1930. Conceding that the deed from the trustee in bankruptcy to 'the estate of G. J. Holcombe' and the deed from Mrs. Mary Holcombe as administratrix of the estate of G. J. Holcombe are void as contended by the plaintiffs--at the time of the death of W. M. Thomas the legal title to the property was not in him, for the reason that the heirs of G. J. Holcombe held title thereto by virtue of the warranty deed from W. M. Thomas to G. J. Holcombe. Though the deed was in fact given to secure a debt, the title passed to G. J. Holcombe, and it was not divested by the bankruptcy proceedings wherein Thomas listed the debt secured and was subsequently discharged from all his debts. Code, § 67-1301; Broach v. Barfield, 57 Ga. 601(3, 7); Jay v. Whelchel, 78 Ga. 786, 789, 3 S.E. 906; Broach v. Powell, 79 Ga. 79, 3 S.E. 763. The title was not affected by the facts that Thomas returned the property as his own, and that the bankruptcy court sought to administer it. Woodson v. Veal, 60 Ga. 562(1); Thaxton v. Roberts, 66 Ga. 704(1); Spradlin v. Kramer, 146 Ga. 396, 91 S.E. 409; Wallace v. Commercial Bank, 159 Ga. 388(2), 125 S.E. 845. Before the grantor in a security deed would become reinvested with title, he must pay or offer to pay the debt for which the security deed was given, and a discharge in bankruptcy of the debt of the grantor does not operate to satisfy the conditions of the security deed or reinvest title in the...
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In re Smith
...of the grantor does not operate to satisfy the conditions of the security deed or reinvest title in the grantor.Thomas v. Stedham, 208 Ga. 603, 606, 68 S.E.2d 560 (1952). I construe this to mean that the security deed remains “valid,” at least in rem, as a matter of Georgia law. Under Butne......
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...under a deed to secure debt, which could not be divested except by payment of the debt, as is true in this case. See Thomas v. Stedham, 208 Ga. 603, 606, 68 S.E.2d 560. Judgment All the Justices concur. On Motion for Rehearing. MOBLEY, Justice. In his motion for rehearing, the plaintiff in ......
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...159 Ga. 388(2), 125 S.E. 845 (1924). See also Potts v. McElroy, 209 Ga. 244, 247–248(2), 71 S.E.2d 612 (1952) ; Thomas v. Stedham, 208 Ga. 603, 606(2), 68 S.E.2d 560 (1952) ; Smith v. Farmers Bank of Glenwood, 165 Ga. 470, 141 S.E. 203 (1928). “Although [Mr. Cuneo] may have been discharged ......
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Whitworth v. Whitworth, 29049
...prescriptive or otherwise, they cannot seek cancellation of the warranty deed to the appellant as a cloud upon title. Thomas v. Stedham, 208 Ga. 603(2), 68 S.E.2d 560; Crawford v. Crawford,143 Ga. 310, 85 S.E. 2. The only remaining theory of recovery which is ascertainable from the allegati......