Mason v. Nour , 190 Ga. 62 ( 1940 )

1. "In an action for recovery of land the description of the property must be sufficiently definite to enable the sheriff, in the event the plaintiff recovers, to execute a writ of possession from the description given." Hamil v. Gormley, 188 Ga. 585 (4 S.E.2d 471), and cit. See Crider v. Woodward, 162 Ga. 743, 752 (135 S.E. 95). In the instant case the petition with the plat attached thereto as exhibit A, construed most strongly against the plaintiff, as it must be on demurrer, failed to describe the property in such manner as would enable the sheriff, in the event of a recovery by the plaintiff, to execute a writ of possession.

2. Since, under the ruling above, the suit must fail as an action for land as referred to in exhibit A, it can not be maintained as an equitable action for the sole purpose of settling disputed land lines of another tract as referred to in exhibit C. Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150, 154 (108 S.E. 609).

3. The judge did not err in dismissing the action on general demurrer to the petition.

Judgment affirmed. All the Justicesconcur.

No. 13019. MARCH 29, 1940. Elizabeth Venable Mason, Coribel V. Orme, and Robert V. Roper filed suit in DeKalb superior court against D. E. Nour, for recovery of land, for a decree establishing the land lines between the properties of petitioners and defendant, and for such other relief as the nature of the case may require. A plat of the land sued for was attached to the petition, and made a part thereof as exhibit A. Another plat was attached as exhibit C, referring to boundaries of another tract as to which the boundaries were sought to be established. In the petition it was alleged: "That the defendant is in possession of certain lands belonging to your petitioners, situated, lying, and being in land lot number 88 of the eighteenth land district of DeKalb County, Georgia, on which defendant has erected a gasoline filling-station, the same being on the east side of the paved highway leading from Stone Mountain, Georgia, to what is known as the Confederate Monumental carving on the steep side of Stone Mountain, and more particularly shown in a plat of said property hereto attached and marked ``Exhibit A' and made a part of this paragraph and petition, to which reference for all necessary purposes is prayed." The copy plat attached is as follows:

[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]

Mrs. Mason alleged that she was the owner of a one-half undivided interest in the property by virtue of a deed made to her on August 31, 1921, and recorded in deed book 138, of the deed records of DeKalb County, Georgia, by Samuel H. Venable, who at that time was the owner of a one-half undivided interest therein. Mrs. Orme and Mrs. Roper alleged that they owned the other half undivided interest, by reason of the fact that their father, William H. Venable, died while seized and possessed of the fee-simple title to said half interest, which at his death vested in them as his children and only heirs at law. The petition contained other allegations, the nature of which is not pertinent to the questions presented by the assignment of error. The exception is to the sustaining of so much of a demurrer filed by the defendant as is contained in the following: "1. That said petition sets forth no cause of action against this defendant. 2. Defendant demurs to said petition, because it is an attempt to join in one suit two separate and distinct causes of action: a case at law for the recovery of land, and a case in equity with reference to boundaries of a separate and distinct tract of land."