Howell v. Wilson , 137 Ga. 710 ( 1912 )

Atkinson, J.

In behalf of Wilson and others (plaintiffs in the trial court, defendants in error here), counsel contend that the facts alleged in the petition authorized the plaintiffs to maintain an action: (a) for removal of a cloud from title; (6) for injunction against interference with the enjoyment of their respective properties; (c) to perfect and complete the means by which the right, estate, and interest of the plaintiffs to their real property may be approved and secured, and to remove all obstacles to its enjoyment. We fail to see that the facts alleged would authorize a court of equity to afford any such relief, and conclude that the court erred in refusing to dismiss the petition on general demurrer. The plaintiffs assert no interest except such as is traceable to the trust deed, and do not allege that the defendants assert any except such as is founded on the same instrument. It is true, that, in addition to record title traceable to the trust deed, the plaintiffs assert in severalty titles by prescription by reason of possession under separate conveyances to them executed by the respective trustees, and other intermediate conveyances; but in order to show that prescription was operative against the defendants during the period of adverse possession, the terms of the trust -deed were relied upon as showing that the fee was always vested, in the one instance, in the trustee, or, in the other instance, in Mrs. Howell, subject to be divested by the happening of a subsequent event, and that in either event suit should have been instituted before the expiration of the prescriptive period had it been desired to question the effect of the conveyances by the trustees or the right of the plaintiffs to titles by prescription. The plaintiffs were in peaceable possession, and it was not alleged that the defendants had themselves entered or otherwise committed a trespass upon the property which would authorize the plaintiffs to sue either in ejectment or for any waste or other wrong to the property; but the object of the suit was to construe the trust deed in a particular way and to establish and declare the several titles of the plaintiffs, thereby concluding the defendants from setting up any claim to it in the future. It is not alleged that the defendants had ever done anything tending to disturb the possession or enjoyment of the property by the plaintiffs, but the complaint is that recently, while the plaintiff Wilson was negotiating a sale of part of the property purchased by him, the defendants raised certain questions as to the title held by Wilson, the same being common to -the other plaintiffs, these questions being of such character as to constitute a cloud upon the titles of all the plaintiffs. The questions so raised and claimed to constitute a cloud upon the title of plaintiffs were: (a) that Dill, as trustee, was not seized of the property in fee simple, and a sale by Dill, under the orders of the court, did not operate to convey the fee-simple title, but at most only an estate for life of Mrs. Howell; that the remainder estate was contingent, and, the remaindermen being not then determinable, the sale by the trustee did not extinguish the estates of possible remaindermen under the deed; (6) that certain of the deeds executed by Dill, as trustee, do not show that they were made under order of the court authorizing them, and that all evidence thereof rests in parol, and would in a short time be lost. There was no effort to cancel as a cloud on title any particular document which was being exhibited by defendants, and could be none, because any possible claim of interest by defendants was under the trust deed, the same instrument upon which plaintiffs’ titles were founded. Hence, the claim of defendants at most could have amounted to no more than oral assertions of title. Equity would not interfere to silence such oral assertions of title, made in that manner, on the ground that they amounted to a cloud upon title; nor, the plaintiffs being in possession, would it assume jurisdiction to decide in thesi the status of plaintiffs’ title with reference to such questions before the death of the life-tenant, when those who would take in remainder were not determinable and possibly not in existence. The case of Waters v. Lewis, 106 Ga. 758 (32 S. E. 854), was one in which the judgment was reversed because the court refused to dismiss the petition on general demurrer. The plaintiff alleged that she was the owner of certain property, of which she was then in possession, but to which defendant had asserted an oral claim. After reciting the history of her own title, and the claim of the defendant, it was further alleged that the latter claim was fraudulent and without foundation, and operated to cause a cloud upon the plaintiff’s title, and had been and was being vexatiously and injuriously used against plaintiff by defendant, who had instituted both civil and criminal proceedings against plaintiff; that the witnesses within whose knowledge the facts relied upon to sustain plaintiff’s title were of great age, and their evidence was likely to be lost by death of the witnesses, and that plaintiff conld not immediately and effectively protect herself and maintain her rights by any course of proceeding open to her, except by resort to a court of equity. The prayers were, that the defendant and all persons claiming under him be enjoined from entering upon the land or asserting a claim to it, and that a decree be granted.declaring the claim of defendant fraudulent and void. It was held that the mere claim to or assertion of ownership in the property is not such a cloud upon title as can be removed by equitable proceedings, and that under the allegations- there was no ground for equitable relief by injunction. This ruling has been approved in the case of Weyman v. Atlanta, 122 Ga. 539 (50 S. E. 492), and in Mayor &c. of Gainesville v. Dean, 124 Ga. 150 (53 S. E. 183). To the same effect see Devine v. Los Angeles, 202 U. S. 313 (26 Sup. Ct. 652, 50 L. ed. 1046); Sulphur Mines Co. v. Boswell, 94 Va. 480 (27 S. E. 24); Newman v. Newman (Tex. App.), 86 S. W. 635. In the latter case it.is said: “Where the bill discloses no more than an unquiet and unfounded apprehension as to the validity of his title, and a false and clamorous assertion of a hostile title in the defendant, equity will not interfere to quiet the one or silence the other.”

The case of Miles v. Strong, 62 Conn. 95 (25 Atl. 459), was a bill to remove a cloud upon title The facts alleged were: Selah Strong by his will devised to Ernest Strong Miles, his grandson, certain real estate, subject to the provision: “The foregoing devises to the said Ernest Strong Miles are subject to the charges aforesaid, to him and his heirs forever, provided however that if he, the said Ernest Strong Miles, shall die before he attains his majority or without leaving lawful issue surviving him, and without having disposed of all the lands by this will devised to him, either by deed or by will, then, and in either of these events, it is my will that all said lands herein devised to the said Ernest Strong Miles, and not by him disposed of, shall descend to and be distributed among my heirs at law, and those who legally represent them.” The land was properly set out and distributed to him in 1882, and the estate fully administered and settled. The land distributed to Ernest Strong Miles was subject to the provisions of the will as set out above. In 1890, after he became twenty-one years old and after-the charges had ceased to exist, he conveyed to his father in trust for himself most of the land. Subsequently, in order to secure any benefit or profit from the land, it was necessary to sell a portion of it, and the trustee contracted to sell a portion thereof to one Mrs. Smith. But before the purchase had been consummated, some of the heirs of Selah Strong, Mrs. Smith learned, were asserting a claim to the land, under the will, and she declined to purchase the land. A demurrer was filed and overruled, and the case was appealed. The claims made by the heirs at law of Selah Strong, and alleged to constitute a cloud on the title of the plaintiffs, were: “After this bargain (to sell the land to Mrs. Smith) was made, the defendants claimed and since have claimed that the will and distribution give them some interest in the land, and that any deed of the same from the plaintiffs or either of them would only convey the same subject to such interest of the defendants. This claim of the defendants came to the knowledge of Mrs. Smith and the plaintiffs, but the exact claim or nature of the interest or title of the defendants, as claimed by them, was not made known to the plaintiffs or Mrs. Smith. In consequence of this claim of the defendants Mrs. Smith refused to complete the purchase and .accept a deed of the premises, and the plaintiffs lost the sale thereof.” In the course of the opinion the court said: “The principal question . . is whether upon the facts stated the plaintiffs were entitled to judgment. The . . claim made by the defendants is in fact based upon the will. . . It will be observed all parties claim under the same . . provisions of that will. They all assert the genuineness and validity of the will. . . Whether the plaintiffs have the absolute title which they claim, or whether the defendants have the contingent interest which they assert, depends upon the construction of the will. If any cloud whatever exists upon the plaintiffs’ title, it exists solely because of the will, and not because of the record of the distribution or of the oral claims and assertions made by the defendants. These are based upon and derive all their force and effect from the will, and without that they would clearly constitute no-' cloud upon the plaintiffs’ title which a court of equity would ordinarily remove. It is the will then, and the will alone, that casts a cloud upon the plaintiffs’ title, if such a cloud exists; and whether or not such cloud exists depends solely upon the construction of the will. . . If the construction contended for by the defendants is the correct one, then the claim made by them does not constitute a cloud upon the plaintiffs’ title, because on that supposition the claim is a valid one. On the other hand, if the plaintiffs are right in the construction, then there is no cloud which a court of equity will relieve against; for on that supposition the will itself shows on its face, and without the aid of extrinsic evidence, that the claim of the defendants has no foundation, and in such eases the general rule certainly is that a court of equity will not interfere to remove such a cloud. Munson v. Munson, 28 Conn. 582; Alden v. Trubee, 44 Id. 455; Cornish v. Frees, 74 Wis. 490 [43 N. W. 507].”

Clearly there were no sufficient allegations to authorize the court to assume jurisdiction for the purpose of declaring that the “questions raised” in the manner alleged constituted a cloud upon title, or to authorize the grant of injunction. But the plaintiffs contended further that equity will interpose for the purpose of construing the deed and settling the' question of title by decreeing the' fee to be vested in the plaintiffs. On the contrary, it is contended that equity will not interfere for such purpose, the defendants not being in possession, and not having made any effort to disturb that of the plaintiffs or instituted any legal proceedings to question the validity of plaintiffs’ title. In Georgia there is no statute expressly conferring equity jurisdiction in such cases, and in the absence of statute equity will not, as a general rule, assume jurisdiction to afford such relief under the conditions alleged. Cross v. De Valle, 1 Wall. 5-17 (17 L. ed. 515); May v. May, 167 U. S. 310 (17 Sup. Ct. 824, 42 L. ed. 179); Mansfield v. Mansfield, 203 Ill. 92 (67 N. E. 497); Torrey v. Torrey, 55 N. J. Eq. 410 (36 Atl. 1084); Frank v. Frank, 88 Ark. 1 (113 S. W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. R. 73); Hart v. Darter, 107 Va. 310 (58 S. E. 590, 15 L. R. A. (N. S.) 599); Heptinstall v. Newsome, 146 N. C. 503 (60 S. E. 416).

In the case of Miles v. Strong, supra, referring to the contentions of counsel, it was said that “their claim is that they are entitled to ask for the construction of this will for the purpose of settling a dispute about a legal title to land. . .We think this can not be done. . . Every dispute between parties relating to the legal title to real estate, arising under wills, deeds, or other written instruments of title, would furnish a pretext to obtain a construction of the instrument in a proceeding of this kind. We hav§ no statute, as in many States, governing this matter, and we know of no practice under which such a result can be obtained in a proceeding like the one at bar.”

The assignment of error upon the refusal of the judge to dismiss the petition on general demurrer having presented the controlling question upon which the judgment is reversed, it is unnecessary to deal with the questions as to the misjoinder of parties, and other grounds of special demurrer, and the direction of a verdict.

Judgment reversed.

All the Justices concur, except Lumpkin, J., disqualified, and Hill, J., not presiding.