Drew v. Drew , 146 Ga. 479 ( 1917 )

Gilbert, J.

(After stating the foregoing facts.) This suit was brought to establish an alleged lost deed, to cancel an outstanding deed, and to recover possession of the land in dispute. The plaintiff was only one of the grantees named in the lost deed, and the defendant was the grantee in the junior deed. The plaintiff and the defendant claimed under a common grantor, who was dead, leaving children not parties to the suit. There was no demurrer to the petition. This court, therefore, will not pass upon the -question of nonjoinder of parties, which was raised for the first time in the brief of counsel.

1. The plaintiff contended that the deed under which she claimed title was prior in date to that relied upon by the defendant; and her testimony was that her deed had been destroyed. A plaintiff in ejectment claiming under a deed as a muniment of title may prove the deed by secondary evidence, provided the proper foundation is laid as to the execution and delivery of the original deed and its loss. Civil Code (1910), § 5829. For a full discussion of this subject see Powell on Actions for Land, §§ 111, 202. The destruction of a deed does not revest the title in the grantor. Holder v. Scarborough, 119 Ga. 256 (46 S. E. 93).

2. In the instant case no copy deed was introduced in evidence, in so far as the record discloses. There was some testimony that a deed was made by the grantor to the plaintiff and her two children. The children were not parties to the suit. It is claimed that the deed to which reference is made in the evidence is the same as that described in the petition. But there is nothing in the record to show any connection between the two. Treating the evidence as sufficient to show the existence and execution and delivery of the deed alleged to have been lost or destroyed, the only evidence as to its contents is the reference to the grantees as being the plaintiff and her children. Under such circumstances, if the plaintiff is entitled to recover, certainly her right would be limited to the interest which she had under the deed, and which, according to the evidence, was that of a tenant in common with her children, and she could recover no more than her undivided interest. The petition alleges that the plaintiff has a life-interest in the land, and in this respect the allegata and probata are at variance.

Under the charge of the court a verdict was rendered for the plaintiff for the premises in dispute, without rent. The court passed a decree establishing the lost deed, and cancelling the outstanding deed, as prayed for, and awarding the premises to the plaintiff. The verdict and decree were unauthorized.

Judgment reversed.

All the Justices concur.