Waldrop v. Bettis
| Decision Date | 20 October 1967 |
| Docket Number | No. 24300,24300 |
| Citation | 157 S.E.2d 870,223 Ga. 715 |
| Parties | Joseph T. WALDROP et al. v. Ada Lee BETTIS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The counts of the petition added by amendment were not subject to general demurrer on the ground that they attempted to plead separate and independent causes of action from that in the original petition, and that the petitioners had made an election of remedies in the original petition.
2. The question made as to the failure to name necessary parties has become moot by the filing of an amendment naming all additional parties necessary to the action.
3. The parties were cotenants of the beneficial interest owned by their father in described property, and the quitclaim deed obtained by the defendants would inure to the benefit of the other cotenants.
4. While the allegations as to tender were incomplete, the petition alleged circumstances showing that tender would be refused if made, and the petition is not subject to general demurrer because of failure to allege tender.
5. The allegations of the petition did not show laches.
6. The second and third counts of the petition stated a cause of action, and it was not error to overrule the general demurrers to these counts.
Duncan & Gary, Vernon W. Duncan, Marietta, for appellants.
Henritze, Baker & Bailey, Kirby G. Bailey, Atlanta, for appellees.
Ada Lee Bettis, Bonnie Ethel Neal, Ruby Bessie Thigpen, Ida Belle Hite, and Lois Grace Horton Brought a petition against Laura A. Reynolds and others for the removal of clouds on the title of the petitioners to described property, and for a division by sale of the described property between the petitioners and Joseph Thomas Waldrop, Birk Norris Waldrop, Elie Fred Waldrop, George Clifford Waldrop, and William Ellis Waldrop, alleged to be tenants in common with the petitioners in the property described. Two additional counts were added, and demurrers were sustained to all three counts, with leave to amend as to Counts 2 and 3 only. The petition was again amended, and renewed demurrers were sustained to Count 2 with leave to amend. Counts 2 and 3 were repleaded, and renewed demurrers to both counts were overruled. The only defendants named in the repleaded counts are Joseph T. Waldrop, Birk N. Waldrop, and George C. Waldrop, and these defendants have appealed from the judgment overruling their general demurrers to Courts 2 and 3 of the petition.
1. The defendants demurred to Counts 2 and 3 on the ground that the petitioners are attempting to plead separate and independent causes of action in these counts from that in their original petition, which has been dismissed on general demurrer with no appeal therefrom, and that they made an election as to the cause of action on which they would rely when they filed their original petition.
In the original petition it was alleged that the petitioners and the defendants are heirs at law of George W. Waldrop, and tenants in common of described land. Numerous defendants were named, and the petition sought to cancel of record certain clouds on the title of the tenants in common. By amendment this petition was designated as Count 1, and two additional counts were added, in both of which it was alleged that a quitclaim deed to the property described in the first count had been obtained by the defendants, alleged cotenants of the petitioners, and it was prayed that the title obtained by the defendants be decreed to be in all of the cotenants jointly. The additional counts were added prior to the sustaining of the demurrer to the first count.
A petitioner can bring a petition in more than one count, pleading different theories of his cause of action, and ordinarily he is not required to elect on which count he will rely. Saliba v. Saliba, 202 Ga. 791, 806, 44 S.E.2d 744. The theory on which the petitioners relied in the first count was not repugnant to the cause of action pleaded in the second and third counts, and there is no merit in the contention that the petitioners made an election of causes of action in the first count. Compare Milton v. Milton, 195 Ga. 130, 132 (3), 23 S.E.2d 411.
2. It is asserted that the petition was subject to general demurrer because of the failure to name necessary parties. It is contended that the petition alleged that Elie F. Waldrop and William E. Waldrop are heirs at law of George W. Waldrop with the petitioners and the defendants, and that these heirs are necessary parties to the action; and that the heirs at law of G. P. Reynolds are necessary parties. Counts 2 and 3 allege that the defendants have acquired the interest of G. P. Reynolds in the property. No conveyance of G. P. Reynolds is sought to be canceled or reformed, and his heirs are not necessary parties to the action.
By an amendment filed since the date of the notice of appeal, Elie F. Waldrop and William E. Waldrop have been joined as petitioners. The defendants question the jurisdiction of the superior court to allow an amendment to the petition after a notice of appeal has been filed and the costs have been paid. The general demurrers to Counts 2 and 3 of the petition as repleaded were overruled, and the case is still pending. The petitioners had a right to amend the petition at any time. Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124; Welsch v. Wilson, 218 Ga. 843(1), 131 S.E.2d 194. The question as to the failure to name these heirs as parties has therefore become moot. Davis House, Inc. v. Mink, 115 Ga.App. 264, 154 S.E.2d 661 For provisions of the Civil Practice Act as to the naming of additional parties see Ga.L.1966, pp. 609, 632 (Code Ann. § 81A-121).
3. Counts 2 and 3 of the petition allege: The petitioners, together with the defendants, are the sole heirs at law of George W. Waldrop, who died on September 5, 1953, and there has been no administration on his estate. A description and adstract of title of certain property is attached. By a writing deted April 2, 1929, G. P. Reynolds transferred title to the described property to George W. Waldrop, a copy of which writing is attached. The defeasance or forfeiture clause in this instrument was waived by G. P. Reynolds, as shown by an attached copy of an answer to a certain lawsuit. From the date of this writing until his death, George W. Waldrop held himself forth as being the owner of this property. After his death, his heirs, including the petitioners and the defendants, jointly and severally paid taxes on the property and attempted to clear the title to the property. On January 23, 1965, the defendants obtained a quitclaim deed from the heirs of G. P. Reynolds conveying title to the described property. The petitioners tendered to the defendants their pro rata share of the consideration paid for this quitclaim deed, and this tender is continuous, but this tender has been refused, and the defendants claim that they own the property to the exclusion of the petitioners. The prayers were for judgment and decree that the title to the property is vested in all the heirs of George W. Waldrop, and for other relief.
Count 3 contains additional allegations as to agreements between the petitioners and the defendants for the purpose of clearing the title to the property claimed by their father, the expenditure of money by the petitioners pursuant to this agreement, the pretense by the defendants of the filing of an action to quiet title, their concealment from the petitioners that they had learned...
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