Roberts v. Burnett , 1927 Ga. LEXIS 124 ( 1927 )

Hines, J.

1. The petition set forth an equitable cause of action for partition against the cotenants of the petitioners.

2. The petition set forth an equitable cause of action against the defendant, Charles E. Roberts, for setting aside or cancelling his lease of the lands sought to be partitioned, as to all the owners of these lands except the lessor.

3. The suit against the defendant,. Roberts, for such equitable relief, was properly brought against him in the county of his residence.

4. The equitable action for partition was properly brought against the cotenants residing outside of this State, in the county where the land is situated; and such non-residents could be served by publication. Civil Code (1910), § 5554.

5. Pleas to the jurisdiction must be pleaded in person, and must, when relied on, be pleaded specially, unless a want of jurisdiction appears on the face of the proceedings, in which ease it may be taken advantage of on motion or by demurrer; but such motion or demurrer, like a plea to the jurisdiction, is one personal to defendants who are not subject to the jurisdiction of the court. Civil Code (1910), § 5665. So where an equitable petition for the partition of land is brought in the county where the land is located, against certain cotenants who reside in a different county in this. State, and against certain cotenants .who reside beyond the limits of this State, the jurisdiction of the court over the cotenants so residing in this State can be raised only by them, either by plea, demurrer, or motion, and can not be urged by a defendant residing'in the county in which the suit is instituted.

6. A plea to the jurisdiction must be filed at the first term. Civil Code (1910), § 5641. If not so filed, it will not be considered. Smith v. Rawson, 61 Ga. 208. By parity of reasoning, a motion to dismiss, or demurrer to, a petition, upon the ground of lack of jurisdiction of the person of a defendant, must be urged at the appearance term, or it will not be considered.

7. A defect in a petition, resulting from nonjoinder of proper parties, should be taken advantage of by special demurrer. Ray v. Pitman, 119 Ga. 678 (46 S. E. 849); Hunt v. Doyal, 128 Ga. 416 (57 S. E. 489). A special demurrer must be filed at the first term; and if not so filed, it can not be considered. Ford v. Fargason, 120 Ga. 708 (48 S. E. 180).

8. Applying the principles above ruled, the court did not err in overruling the demurrer of the defendant, Roberts, to the petition in this case.

9. Where one eotenant, without authority from his cotenants, executes a lease under seal for such eotenants, the latter are not bound; and until they become bound, the contract signed by the other cotenant for them lacks the element of mutuality between them and the lessee, and the lessee’s holding is to be considered as a tenancy at will. Lynch v. Poole, 138 Ga. 303 (75 S. E. 158); Neely v. Stevens, 138 Ga. 305 (75 S. E. 159) ; United Leather Co. v. Proudfit, 151 Ga. 403 (107 S. E. 327).

10. Ratification of such an instrument, to be binding upon the principal, must also be under seal, and can not be by words or conduct. McCalla v. American Freehold &c. Co., 90 Ga. 113 (15 S. E. 687); Overman v. Atkinson, 102 Ga. 750 (29 S. E. 758); Lynch v. Poole, Neely v. Stevens, supra.

11. Acceptance by the principal, for whom his cotenant assumed to act in executing such lease, of his proportionate share of the annual rent paid by the tenant at will, did not amount to a ratification by him of the lease instrument, especially when he notified the tenant that he would not be bound by the lease contract. Holding as a tenant at will, such payment of rent will be beld as made by him in that capacity, and not in the capacity of a tenant for years.

No. 5552. April 13, 1927.

12. Applying the rulings above made, the court did not err in directing a verdict in favor of the petitioners for partition, and in cancelling, except as to the lessor signing the same, the lease contract.

Abatement and Revival, 1 C. J. p. 37, n. 31; p. 40, n. 42; p. 41, n. 48; p. 255, n. 55; p. 265, n. 26; p. 266, n. 37.

Cancellation of Instruments, 9 C. J. p. 1232, n. 80.

Partition, 30 Cyc. p. 214, n. 87.

Pleading, 31 Cyc. p. 274, n. 50; p. 293, n. 97.

Process, 32 Cyc. p. 468, n. 26.

Tenancy in Common, 38 Cyc. p. 105, n. 79; p. 106, n. 3.

Venue, 40 Cyc. p. 69, n. 83; p. 94, n. 74.

Judgment affirmed.

All the Justices concwr. E. B. King and G. L. Glessner, for plaintiff in error. Zack Arnold, E. A. Wilkinson, and James W. Eafris, contra.