White v. Gordon

• Decision Date: 10 January 1958
• Docket Number: No. 19890,19890
• Citation: 101 S.E.2d 759,213 Ga. 730
• Parties: A. V. WHITE et al. v. Katherine B. GORDON.
• Court: Georgia Supreme Court

Page 759

101 S.E.2d 759

213 Ga. 730

A. V. WHITE et al. v. Katherine B. GORDON.

No. 19890.

Supreme Court of Georgia.

Jan. 10, 1958.

Syllabus by the Court.

1. A suit to recover land in ejectment, wherein the plaintiff relies upon his title alone and does not seek the aid of a court of equity, is a case respecting title to land within the meaning of art. 6, sec. 14, par. 2 of the Constitution of Georgia (Code, § 2-4902), and must be tried in the county where the land lies.

2. In a complaint in ejectment, unless the ambiguity in the description of the premises sought to be recovered is patent, and appears on the face of the declaration, the suit cannot be dismissed for uncertainty in the description.

3. 'A right of action is assignable if it involves, directly or indirectly, a right to property.' Code, § 85-1805.

4, 5. The court committed no error in charging the law of acquiescence, nor in failing to charge this law as contended by the defendants.

6. The evidence supports the verdict, and it was not error to deny the defendants' motion for a new trial for any of the reasons assigned.

George L. Jackson, Gray, for plaintiffs in error.

J. Pierce Anderson, Gray, Wheeler, Robinson & Thurmond, Gainesville, for defendant in error.

ALMAND, Justice.

Mrs. Katherine B. Gordon filed her suit in ejectment for the recovery of 14.4 acres more or less of certain described land located in Jones County, and for damages to the freehold on account of the cutting of timber on the land, and named as defendants Mrs. A. V. White, Sr., A. V. White, Jr., and Mrs. Mary White Bailey. Plaintiff alleged that she claimed title to the land by virtue of a warranty deed from her husband, Mose Gordon, dated December, 1954, and that she had a written assignment from her predecessor in title granting to her the right to recover for the timber cut and removed from the property. Plaintiff's prayers were for 'judgment for the premises' and for a recovery for damages to the freehold.

Defendants filed their plea to the jurisdiction, alleging that they were residents of Twiggs County, and that the Superior Court of Jones County had no jurisdiction of the case, and their general and special demurrers to the petition as amended, all of which were overruled. On the trial of the case, a verdict was returned in favor of the plaintiff for the land and for damages. Defendants filed their motion for a new trial on the general and special grounds, and this motion was denied. The exceptions are to the orders overruling the defendant's plea to the jurisdiction. their general and special demurrers, and their motion for a new trial as amended.

1. 'Cases respecting titles to land shall be tried in the county where the land lies.' Art. 6, sec. 14, par. 2, Constitution of Georgia (Code, § 2-4902). Our law makes a distinction between suits to establish the 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. The above-quoted constitutional provision concerns actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant, for the recovery of land or recovery of the land and mesne profits. Owenby v. Stancil, 190 Ga. 50, 55, 8 S.E.2d 7. 'One set as to whether a suit to recover land is one of ejectment simply, and is a case 'respecting title to land,' 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.' Frazier v. Broyles, 145 Ga. 642, 646, 89 S.E. 743, 745. The petition in the instant case seeks no equitable relief. Rather, it is an action in ejectment wherein the plaintiff claims title to the land in question on the basis of her abstract of title, which she incorporated in her petition by amendment, and seeks to recover the described tract of land and damages for the cutting of timber thereon. There being no equitable relief sought, the suit was properly brought in the county where the land lies, and the court did not err in holding that it had jurisdiction of this case and in thereafter overruling defendants' plea to the jurisdiction, paragraphs 1, 2, 3, and 14 of their demurrers with respect to this point, and special grounds 1 and 2 of the amended motion for new trial. See Bird v. Trapnell, 147 Ga. 50, 92 S.E. 872.

2. The land sought to be recovered was described in the petition as follows: 'Beginning at an iron pin on the Round Oak Juliette Road at a point with what was Formerly the corner of the land with A. V. White, Sr., and running thence in a Southerly direction and a Southeasterly direction along the meanderings of a branch, a distance of 1839 feet to a corner; thence South 78 degrees 06 minutes East 580 feet to an iron pin; thence North 46 degrees 47 minutes East a straight line to a fence; thence Northwesterly a straight line along said fence to the beginning corner.' (Italics supplied.) In paragraph 8 of the defendants' special demurrers, an attack is made upon the sufficiency of the description of the land described in the deed upon which the plaintiff claims title. It is asserted that the description in the deed discloses that the boundary line 'along the meanderings of a branch' leaves a gap in the description, in that it is impossible to ascertain or discover where the land is located. It is also contended that there is no description to cover the line from the starting point to where the branch begins at a spring, or any indication as to where the line would intersect with the branch.

It is, of course, settled that the declaration in ejectment should describe the premises in dispute with such definiteness that, in the event of a recovery by the plaintiff, the sheriff could execute the writ of possession from the description given. Darley v. Starr, 150 Ga. 88, 90, 102 S.E. 819, 820. 'A declaration in ejectment, which upon its face discloses a patent ambiguity, is subject to general demurrer. Unless the ambiguity is patent, and appears on the face of the declaration, the suit cannot be dismissed for uncertainty in the description.' Darley v. Starr, supra. The description contained in paragraph 1 of the petition, after pointing out the iron pin which is the starting point, describes the land as 'running thence in a Southerly direction and a Southeasterly direction along the meanderings of a branch, a distance of 1839 feet to a corner; * * *' (Italics supplied.) Taking this allegation as true on demurrer, as we must, it appears that the word thence must indicate that the branch intersects with the starting point. No gap in the description appearing on the face of the deed, a patent ambiguity does not exist and it was not error to overrule the demurrer which attacked this description. See Holcombe v. Dinsmore, 164 Ga. 200, 137 S.E. 924.

3. Paragraphs 12 and 13 of the defendants' demurrers, and special grounds 7 and 8 of the amended motion for new trial, relate to the assignment to the plaintiff by her predecessor in title, her husband, of his rights to sue for the cutting of timber and the removal thereof from the land in question. Defendants contend that this is an attempt to assign a tort for trespass which, under our laws, is unassignable. The primary relief here sought by the plaintiff is for an adjudication of her title to the premises, and her prayer for damages for the cutting of...