Wood v. Hayes

• Decision Date: 15 February 1940
• Docket Number: 13133.
• Citation: 7 S.E.2d 256,189 Ga. 658
• Parties: WOOD v. HAYES et al.
• Court: Georgia Supreme Court

7 S.E.2d 256

189 Ga. 658

WOOD v. HAYES et al.

No. 13133.

Supreme Court of Georgia

February 15, 1940

Syllabus by the Court.

1. Fairly construed, the answer, though asserting that the defendant, through inheritance from her mother, is tenant in common with plaintiffs, negatives her claim of ownership, and admits facts which establish the entire title in the plaintiffs.

2. A cross-petition seeking to introduce new and distinct matters not involved in the action as brought was subject to dismissal on demurrer.

3. An interlocutory injunction is not available as a remedy for the purpose of evicting a party from the actual possession of land, the right to which he is disputing with another.

Randall Hayes and Ruby Hayes Walker brought their equitable petition in the superior court of Polk County, Georgia, against Georgia Wood and Lamar Callaway, children by a former marriage of Edna Hayes, the deceased wife of Randall Hayes. Petitioners allege that they are the owners in fee simple of the house and lot at No. 216 Thompson Street, in the City of Cedartown; that the described property was conveyed to them by deed, a copy of which was attached to the petition, the deed reciting that te property was conveyed to Randall Hayes and Edna Hayes jointly, share and share alike, but further provided: 'Should either Randall Hayes or Edna Hayes die not having conveyed his or her interest, in that event the interest of the deceased shall revert to Ruby Hayes, the daughter, should she be living.' Petitioners allege that during the last illness of Edna Hayes the defendant Georgia Wood, her daughter by a former marriage, whose legal residence was alleged to be in Cleveland, Ohio, came with her two children and she and they now occupy the residence above referred to, which is where petitioners reside, and which is the property in controversy; that the defendant refuses to vacate the premises, and claims an interest therein by reason of being the daughter of the deceased Edna Hayes; that defendants have no right, title or interest in or to the premises, and that defendant's claim is a cloud on petitioners' title and prevents the free enjoyment and possession of the premises; that Georgia Wood is insolvent that there is no adequate remedy whereby the defendant and her effects may be evicted from the premises, and that petitioners are entitled to present relief. Paragraph 2 of the petition contains three allegations, to wit, (a) that petitioners are the owners in fee of a certain city house and lot; (b) the description is set forth, and further that (c) 'the property described was conveyed to petitioners on the second day of June, 1921, by Mrs. Cora B. Mercer and was recorded in the clerk's office in book ten, page 229, on the eighth day of June, 1921, as shown by copy of said deed attached to this petition.' Among the prayers are these That Georgia Wood 'be restrained from entering upon and/or remaining on said premises,' etc.; another, 'that a decree be granted confirming petitioners' title and removing any cloud on the same over the pretended claim of the defendants;' and that 'the defendants be required to plead and set up whatever claim or claims they can assert to the property herein described.'

Georgia Wood filed her answer, not denying the execution of the deed referred to in the petition, but claiming that under it she and her brother, Lamar Callaway, as the children and heirs at law of Edna Hayes, own each a one-fourth undivided interest in the property. She also averred at great length that the petitioner Randall Hayes, while still living in the house with his wife, deserted her and refused to provide for her support and care during her illness, or to pay the funeral expenses after her death, all of which defendant averred were borne by her to the extent of more than a thousand dollars. In her answer she averred that 'as the heir at law of her mother, she owns an interest in said property, and is joint tenant and tenant in common with the plaintiffs in this case.' She prayed that the prayers of the petitioners be denied, and that they be enjoined from selling or encumbering whatever interest they may have in the property in dispute, and that defendant have judgment against Randall Hayes in the sum of $1,009. To her answer the petitioners filed general and special demurrers, which the court sustained, and dismissed the answer. After hearing evidence and argument of counsel, the court passed an order holding that the plaintiffs own the property in dispute, and are entitled to the injunction prayed, and decreed that the defendants each be restrained and enjoined from entering upon, using, occupying or appropriating to their use in any ways the property in dispute. To the ruling dismissing her answer, and to the final order and judgment of the court, Georgia Wood excepted.

J. A. Wright and Henry A. Stewart, both of Cedartown, for plaintiff in error.

Forrest C. Oates, Jr., I. L. Mundy, and John L. Tison, all of Cedartown, for defendants in error.

GRICE Justice.

1. The deed referred to in the foregoing statement of facts begins with the recital that it is an indenture between 'Mrs Cora B. Mercer of the one part, and Randall Hayes and Edna Hayes, his wife, and their...