Owenby v. Stancil , 190 Ga. 50 ( 1940 )

1. Equity cases must be brought in the county in which resides a defendant against whom substantial equitable relief is sought. "Cases respecting title to land" must be brought in the county in which the land (or a part thereof in case of a single tract) lies. The phrase "cases respecting title to land," as used in this context, means actions at law, such as ejectment or statutory substitutes therefor, in which the plaintiff relies on legal title to recover possession of the land or of the land and mesne profits. It does not include actions in which the plaintiff must seek the aid of equity to perfect his title.

2. There is a distinction between suits to establish title to land or to establish the evidence of title, and suits to recover the land upon legal title; the former being suits in equity, and the latter actions at law.

3. The common test as to whether a suit to recover land is one of ejectment simply and is a "case respecting title to land" within the purview of the venue provisions of our constitution and Code is whether the plaintiff can recover on his title alone or whether he must ask the aid of a court of equity in order to recover.

4. In proceedings for the appointment of a guardian taken under the Code, § 49-604, where the required ten-days notice is given to the three nearest relatives, it is not necessary that an affidavit be made that the person for whom a guardian is sought is violently insane and is likely to do himself bodily injury.

5. Nor is it necessary that any service of the application be made on such person or a guardian ad litem be appointed, the notice contemplated by the statute being the mandatory requirement that the commission appointed by the ordinary examine such person by inspection.

6. In a suit in ejectment to recover land, a judgment of the ordinary appointing for the deceased a guardian who under the provisions of the Code acted as the administrator of the estate of the deceased and as such sold the property sued for, can not be collaterally attacked for defects not appearing on the face of the record.

7. Whatever powers a court of equity may have to permit an attack on such a judgment, they can not be invoked if none of the parties against whom substantial relief is prayed are residents of the county in which the suit is brought.

8. The petition in the present case was properly construed as one seeking to establish title to the land, and not to recover on legal title, and was properly dismissed for the reason that none of the defendants against whom substantial equitable relief was sought were residents of the county in which the suit was brought.

9. The notice to the nearest relatives of an alleged mental incompetent, required by the Code, § 49-604, may be given either before or after the application is actually filed, provided it is given ten days before the commission issues and gives notice of the time the commission is to be issued.

No. 13002. MARCH 29, 1940. Mary F. Owenby and L. J. Owenby brought an action in Colquitt superior court against W. R. Stancil, J. W. Lacy, Etowah Bank, J. H. Southwell, and W. C. Little, denominating it in the opening clause of the petition as a "complaint for land and for ancillary relief." The substance of the allegations is as follows: Stancil, Lacy, and Etowah Bank are residents of Cherokee County, and Southwell and Little are residents of Colquitt County. Mary F. Owenby is the widow of J. W. Owenby, who died intestate in March, 1938, owning a described tract of land in Colquitt County, and who resided in Colquitt County from 1926 until the time of his death. In February, 1939, Mary F. Owenby applied for, and in March, 1939, there was set apart to her by judgment of the court of ordinary of Colquitt County, a year's support in said land. Thereupon she conveyed to the other plaintiff the land, but reserved to herself a life-interest therein. (No point is made in the record as to the joinder of the remainderman having no present right of entry or possession, with the life-tenant claiming present rights of entry and possession.) The rental value of the premises is alleged to be $200 per year. The defendants are alleged to be in possession; the relationship between them being that Little is in actual possession as share-cropper of Southwell, who rents the land from Stancil for $200 per year. The bank holds a deed to the property to secure a debt due to it by Stancil. Stancil claims title to the land under a deed dated August 1, 1938, from J. W. Lacy purporting to act as administrator of the estate of J. M. Owenby. It is alleged that J. W. Lacy was never such administrator, because of the fact that in March, 1937, and for several previous months, Owenby was insane and still residing in Colquitt County; that an application was made to the ordinary of Colquitt County for appointment of a lunacy commission to inquire into his mental condition; but that, about a week thereafter and while that application was pending, Stancil and his wife (a daughter of the deceased) and Lacy, with knowledge of the lunacy proceedings, came to Owenby's home in Colquitt County and took him to Stancil's home in Cherokee County; that Owenby was hopelessly insane and remained so until the time of his death, and the object of Stancil and Lacy in taking him away was to get possession of his property, and, by fraudulent representation to the ordinary of Cherokee County as to his residence, to have Lacy appointed as his guardian, and thereby get possession of his property, as they later did; that on March 29, 1937, Stancil filed with the ordinary of Cherokee County an application for a guardianship for Owenby, alleging that "said J. M. Owenby, of said county, is an imbecile and incapable of managing his estate, and is liable to have a guardian appointed," the application being verified by affidavit of Stancil. On the same date the ordinary granted the usual citation, and issued an order directing Dr. James R. Boring to examine J. M. Owenby and make a report to the ordinary "in writing as to the truth of the affidavit of W. R. Stancil relative to the mental condition of said J. M. Owenby." On the same date the ordinary of Cherokee County ordered that a commission issue, and it was issued to "James R. Boring, physician; J. F. Covington, physician, John W. Collins, attorney," requiring them to make an examination of J. M. Owenby and to report to the ordinary as required by law in such cases. On that date Dr. Boring reported in writing to the ordinary, but not under oath, that "the affidavit of W. R. Stancil in reference to the mental condition of J. M. Owenby is true." On the same day the commission in writing reported, over their signatures, "We do find the said J. M. Owenby to be an imbecile and incapable of managing his estate, from old age." On the same date the ordinary entered an order appointing J. W. Lacy guardian of J. M. Owenby.

It is alleged, that the commission made their report without having gone in a body to see and examine J. M. Owenby, and without having made any examination of him while assembled as a commission in his presence; that no service was made upon him, and no guardian ad litem appointed for him; nor was any service on any relative of his or on any other person, nor was an acknowledgment of service of said application made by any person, nor was an affidavit made and filed in connection with said application, by any relative, by any physician, or by any other person, that Owenby was violently insane or likely to do himself bodily harm. Annexed to the record in the office of the ordinary in Cherokee County is a certain notice dated March 15, 1937, signed by W. R. Stancil, directed to "Mary Owenby, the wife of J. M. Owenby, Winnie Owenby, Owenby Mullins, Josie Owenby Stancil, and James L. Owenby," as follows: "You are hereby notified that I have this day applied to the ordinary of Cherokee County, Georgia, asking that a commission be appointed to examine J. M. Owenby as to his ability to manage his estate, on account of imbecility, and that after the expiration of 10 days, to wit, March 29th, if no objections are filed, said ordinary will appoint a commission to examine said J. M. Owenby; and if found incapable on account of imbecility resulting from old age, a guardian will be appointed for him." There appears in the record an acknowledgment dated March 17, 1937, purporting to be signed by all the persons to whom the motion is directed, in these words: "This is to acknowledge receipt of the above notice, and the undersigned agrees for a commission to be appointed and determine whether or not J. M. Owenby is competent to look after his own affairs. In the event he is found incompetent, we select as his guardian J. W. Lacy, of Cherokee County, Georgia, and respectfully ask the court to appoint him as such." Josie Owenby Stancil is the wife of W. R. Stancil.

It is alleged, that the signature of Mary F. Owenby is a forgery, not being put there by her or with her authority or consent; that the entire guardianship proceeding in Cherokee County was fraudulent and in furtherance of a fraudulent scheme of Stancil and Lacy; that defendants have no claim of title to the land except under said proceedings; and that these proceedings were void, because (1) that the appointment of Lacy as guardian and the intervening steps, all taking place on the same day, were contrary to law; (2) that no notice was given to the next of kin; (3) that the purported notice was not of "such application," but was notice of an intention to make an application; (4) that no affidavit was made that Owenby was violently insane or liable to do himself bodily injury; (5) that no physician made any such affidavit; (6) that the commission as a body did not examine Owenby or have him brought before them for examination; (7) that he was given no notice of the application, nor was any guardian ad litem appointed, nor was he given any opportunity to be heard; (8) that he was not a resident of Cherokee County, but of Colquitt County, and a lunacy proceeding was pending in Colquitt County; (9) that the appointment was procured by the fraud of Stancil and Lacy. In August, 1937, Lacy as guardian advertised said land for sale, and offered it for sale on the first Tuesday in September, 1937, and Lacy and Stancil were both present. T. J. Owenby appeared at the sale and gave public notice to them and all others that the claimed guardianship was void, but the property was knocked off to J. H. Southwell for $2650. The bid was not paid, and no steps were thereafter taken to enforce it; but Lacy, under his claim as guardian, continued to hold possession for the years 1937 and 1938, and by tenant in 1939. J. M. Owenby died on March 21, 1938. Claiming to succeed to the administration by operation of law under his claimed guardianship, Lacy undertook to administer his estate. As such, during June, 1938, he advertised the land for sale in the official gazette of Cherokee County, and sold it on the first Tuesday in July, 1938. Certain irregularities in the sale, not necessary to be set forth, are alleged. Lacy as administrator made a deed to Stancil for a consideration of $1600. It is alleged, that the deed is null and void, "because the guardianship was void, and because of the fraud in the sale to Stancil;" that Stancil is insolvent, and will continue to collect the rents; that plaintiffs have no complete and adequate remedy at law to protect all their rights; that a receivership as to the land and the rents is necessary to protect the plaintiffs against the loss of the rents; and that the bank should be enjoined from foreclosing its security deed. It is then alleged: "The main object of this action is to recover possession of said land and mesne profits under and by virtue of the claim of title herein set up by petitioners. All equitable relief herein sought is in and of and ancillary to that main object. All other relief sought herein is a proper part of such a case."

Other allegations are deemed immaterial here. It is prayed (a) that the title to the land be adjudged and decreed to be in plaintiffs; (b) that writ of possession and all other appropriate writs issue; (c) that the defendants be enjoined from changing the present status; (d) that a receiver be appointed to take charge of the land and collect the rents; (e) and for all further appropriate relief.

Stancil, Lacy, and Etowah Bank moved to dismiss the case, on the ground that no substantial equitable relief was prayed against any of the defendants who resided in Colquitt County; and that the court had no jurisdiction of the case. The motion was sustained, and the plaintiff excepted. 1-5. It has been necessary to state the petition with some fullness, to make plain the point in the case and the nature of our decision. The defendants won in the court below on the theory that the action was such an equitable action as that it could be brought only in Cherokee County, under the provisions of the constitution, art. 6, sec. 16, par. 3 (Code, § 2-4303), that "Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." The contention of the plaintiff is that it is a case respecting title to land, and therefore was properly brought in Colquitt County where the land lies, under the provision of the constitution, art. 6, sec. 16, par. 2 (Code, § 2-4302), that "Cases respecting titles to land shall be tried in the county where the land lies."

"Our law makes a distinction between suits to establish the title to land or to establish the evidence of title, and suits to recover the land upon legal title; the former being suits in equity and the latter actions at law." Powell on Actions for Land, § 150. The "cases respecting titles to land" referred to in art. 6, sec. 16, par. 2, of the constitution (Code, § 2-4302) are actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant, for recovery of land or recovery of the land and mesne profits. The test stated inFrazier v. Broyles, 145 Ga. 642, 646 (89 S.E. 743), is the one commonly used: "One test as to whether a suit to recover land is one of ejectment simply, and is a case ``respecting title to land,' is whether the plaintiff can recover on his title alone, or whether he must ask the aid of a court of equity in order to recover." The plaintiffs say, not only in their argument but also in the petition itself, that they are suing to recover the land and mesne profits, and are asking equitable relief, not as to the establishment of their title, which is a legal title, without need for any resort to equity, but for the protection of their recovery of mesne profits.

The foundation of the plaintiff's right to recover the land is found in her allegations that her husband, J. W. Owenby, died intestate in March, 1938, a resident of Colquitt County, as the owner thereof, and that it was duly set apart to her as a year's support under the Code, § 113-1002 et seq. Had the plaintiff stopped here, she would have shown a presently enforceable legal title against the possession of the defendant, for recovery of the land, and under the principles already stated her action would have been on its face one respecting title to land, and as such, under the constitution, properly instituted in Colquitt County where the land is situate. This she did not do; but, anticipating the defendant's defense, she alleged that, on the representation of the defendant Stancil that Owenby was an imbecile and incapable of managing his estate, the ordinary of Cherokee County in March, 1937, appointed the defendant Lacy as his guardian under the Code, § 49-604; that, acting under the authority of § 49-316, which provides, in substance, that upon the death intestate of a person under guardianship, the guardian becomes the administrator of his ward's estate by operation of law, Lacy proceeded to administer the estate of Owenby, and as his administrator sold the property to the defendant Stancil. If the judgment of the court of ordinary of Cherokee County, appointing a guardian for Owenby, is void and may be so dealt with in the proceeding to recover the land, instituted in the superior court of Colquitt County, it would follow that the deed would be void, and the plaintiff would show a present enforceable legal title to the property. If, on the other hand, the judgment must be treated as valid in such a proceeding, her action must fail. She alleged that the proceedings for the appointment of a guardian for Owenby and the judgment rendered thereon were void, for the various reasons set out in the statement of facts.

In Morton v. Sims, 64 Ga. 298, it was said in substance that a judgment appointing a guardian under the Code, § 49-604, is one rendered by the ordinary, and not the court of ordinary (the latter being a court of general jurisdiction in "the appointment and removal of guardians of minors and persons of unsound mind" (§ 24-1901(5)), and that the proceedings should show on their face jurisdictional facts, especially as to the notice to the relatives. Two of the attacks made on the judgment are in substance: (1) that it does not appear that any affidavit was made by one of his relatives that he was violently insane or liable to do himself bodily injury, or that a practicing physician made such an affidavit; and (2) that it does not appear that any service of the application was made on Mr. Owenby, or that any guardian ad litem was appointed for him. The answer to the first attack is that such an affidavit is required, in proceedings for the appointment of a guardian under the statute, only where the ten-days notice to the three nearest relatives is waived; that is, where consent is given that the commission for the examination of the alleged lunatic may issue before expiration of ten days from the notice. In Yeomans v.Williams, 117 Ga. 800 (45 S.E. 73), this court held that the relatives could not confer jurisdiction by waiving the ten-days notice, saying that "notice and lapse of time are both jurisdictional facts." In Allen v. Barnwell, 120 Ga. 537 (48 S.E. 176), where, as in this case, the proceedings all took place in one day, the court held the proceedings to be a nullity, and allowed them to be subjected to collateral attack in a habeas-corpus case. The court said, speaking through Mr. Justice Lamar, "On principles fundamental and universal, a judgment without notice is void, and in every case there must at least be the notice required by the statute." The court began its opinion in that case with the statement that "The delay involved in the necessity of giving ten-days notice before being able to obtain an order of commitment for one who is violent and insane, may occasion inconvenience or even danger," and suggested that the situation address itself to the General Assembly. The General Assembly thereafter (Ga. L. 1915, p. 20) amended the statute into the form in which it now appears in the Code; so that in the case of a person violently insane or likely to do bodily harm to himself there might be a waiver of notice, upon the establishment of the facts. Under the statute as it now exists, ten-days notice of the application for the appointment of a guardian thereunder must be given to the three nearest relatives of the person for whom a guardian is sought; and the ten-days notice can not be waived, except where an affidavit is made "that such person is violently insane and is likely to do himself bodily injury," and the truth of such affidavit is verified by a physician. Where the ten-days notice is given, no such affidavit is necessary.

Nor does the statute require any service of the application to be made on the alleged lunatic by the sheriff or other officer, or that a guardian ad litem be appointed. The notice contemplated by the statute is, as was pointed out in Georgia Railroad Bankc. Co. v. Liberty Bank c. Co., 180 Ga. 4 (177 S.E. 803), the examination by inspection of the alleged lunatic by the commission appointed by the ordinary. In that case the court held that the act did not violate the due-process clause of the State or Federal constitution on the alleged ground that it failed to provide for any notice to the person alleged to be insane. The court said, in substance, that although the statute did not provide for service of the application upon the person to be examined, its mandatory provision requiring the commission appointed by the ordinary to examine such person by inspection was sufficient notice to him to meet the requirements of due process. The language of the court in Morton v. Sims, supra, was declared to be obiter dictum.

6. It is further alleged that the "commission made their . . report without having gone in a body to see and examine the said J. M. Owenby, and without having made any examination of said J. M. Owenby while assembled as a commission, in his presence." This provision is mandatory, and unless complied with the ordinary is without jurisdiction to appoint a guardian. Singer v.Middleton, 135 Ga. 825 (70 S.E. 662). The above allegation is not to the effect that the record of the proceedings wherein a guardian was appointed for Mr. Owenby does not disclose a compliance with this requirement, but is merely a charge that there was in fact no such compliance. If, under the decision in the Morton case, supra, this fact should appear on the face of the record (and we need not so decide), we must assume, in the state of the present record, that the record of the proceedings had before the ordinary is in proper form. This being true, the above allegation must be taken as an effort by aliunde evidence to impeach the record. The same observation may be made as to the allegation that Mr. Owenby was not a resident of Cherokee, but of Colquitt County. It is affirmatively alleged that the record shows an acknowledgment of service of notice of the proceedings by the three nearest relatives of Mr. Owenby living in this State, including the plaintiff. The plaintiff seeks also to impeach the record in this respect by showing that no such notice was given, and that the acknowledgment by Mrs. Owenby was a forgery.

While it is provided in the Code, § 110-709, that "The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it," and again, in § 110-701, that "A void judgment may be attacked in any court and by any person," these sections have generally been construed to refer to judgments void on their face, it being the general and almost universally accepted rule that a domestic judgment can not be called into question in a collateral proceeding, except for defects apparent on the face of the record, such as would render the proceedings void. Thomas v.Lambert, 187 Ga. 616 (1 S.E.2d 443); Edwards v.Ashley, 136 Ga. 144 (70 S.E. 1101); Schulze v. Schulze,149 Ga. 532 (101 S.E. 183); Kimball v. Kimball, 160 Ga. 136 (127 S.E. 411); Sheppard v. Whitfield, 50 Ga. 311;Wash v. Dickson, 147 Ga. 540 (94 S.E. 1009); Jones v.Smith, 120 Ga. 642 (48 S.E. 134); Maybin v. Knighton,67 Ga. 103; Heath v. Miller, 117 Ga. 854 (44 S.E. 13);Dixon v. Baxter, 106 Ga. 180 (32 S.E. 24); Payne v.McCrary, 187 Ga. 573 (1 S.E.2d 742); Medlin v. DowningLumber Co., 128 Ga. 115 (57 S.E. 232); Bowen v. Gaskins,144 Ga. 1 (85 S.E. 1007); Ketterer v. Stringfield,142 Ga. 441 (83 S.E. 116). In 15 R. C. L. 893, it is said: "According to the common-law rule, adhered to at the present time in most of the States, the presumption in favor of the jurisdiction of a court of general jurisdiction is conclusive, and its judgment can not be collaterally attacked where no want of jurisdiction is apparent of record. Whenever the record of such a court is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that whatever ought to have been done was not only done but that it was rightly done. So, where the judgment contains recitals as to the jurisdictional facts, these are deemed to import absolute verity unless contradicted by other portions of the record. Consequently such a judgment can not be collaterally attacked in courts of the same State by showing facts aliunde the record, although such facts might be sufficient to impeach the judgment in a direct proceeding against it. The validity of a judgment when collaterally attacked must be tried by an inspection of the judgment roll alone, and no other or further evidence on the subject is admissible, not even evidence that no notice had been given." See also 1 Freeman on Judgments (5th ed.), § 375 et seq. Applying the above rule, it has been held that a judgment granting letters of administration valid on its face can not be collaterally questioned on the ground that the deceased was not a resident of the county. Jones v. Smith, supra. Or on the ground that the person to whom letters were granted was not of the class entitled thereto. Wash v. Dickson, supra. It has been ruled that a judgment of divorce could not be collaterally questioned on the ground that the defendant was a resident of a county in the State other than that in which it was obtained (Kimball v.Kimball, supra), or that the plaintiff therein was a resident of another county (Schulze v. Schulze, supra). It has also been held that a widow could not collaterally attack a judgment setting apart to her a year's support, on the ground that she did not apply for it. Allen v. Lindsey, 113 Ga. 521, 523 (38 S.E. 975).

It is true that this court, in Johnson v. Wright, 27 Ga. 555, apparently permitted a collateral attack on a judgment, although the rule prohibiting such attack except where the judgment is void on its face was not alluded to or discussed. As already pointed out, this court has many times since that decision adhered to the general rule, and the court is now of the opinion that any other and contrary rule would be inimical to orderly processes and the sanctity of judgments, and that that decision in so far as it may be construed to hold to the contrary should be and is upon request made therefor overruled. It is true also that this court has in many cases held that a court of equity may set aside a judgment of the court of ordinary for fraud and for defects in such judgments as are alleged by the plaintiff to exist in the judgment in question. Without deciding when and under what circumstances a court of equity may entertain an attack upon a judgment of a court of competent jurisdiction either collaterally or in a direct proceeding for such purpose, see generally, but not exhaustively, Code, § 110-710; Johnson v. Peoples Bank, 173 Ga. 250 (160 S.E. 235); Pass v.Pass, 98 Ga. 791 (25 S.E. 752); Griffin v. Sketoe,30 Ga. 300; Williams v. Lancaster, 113 Ga. 1020 (39 S.E. 471); Wimberly v. Mansfield, 70 Ga. 783; Smith v.Cuyler, 78 Ga. 654 (3 S.E. 406); Alabama Great Southern R.Co., v. Hill, 139 Ga. 224 (76 S.E. 1001, 43 L.R.A. (N.S.) 236, Ann. Cas. 1914D, 996); Jordan v. Callaway, 138 Ga. 209 (75 S.E. 101); Rodgers v. McCune, 143 Ga. 657 (85 S.E. 837); Powell v. Harrison, 180 Ga. 197 (178 S.E. 745);Blackwell v. Parks, 166 Ga. 631 (144 S.E. 24); Young v.Young, 188 Ga. 29, 33 (2 S.E.2d 622). No such equitable powers can be invoked in the present case, since the specific objection is made that none of the defendants against whom substantial equitable relief is prayed are residents of Colquitt County. Neither Lacy, the guardian and administrator, nor Stancil, the purchaser of the property, is a resident of Colquitt County. Since the superior court of Colquitt County, in the exercise of its purely legal powers, must give effect to the judgment, and can not receive proof of its invalidity under the rule already discussed, the petition must be construed as one seeking to invoke the power of the court as a court of equity to annul the judgment; and since none of the defendants against whom substantial equitable relief in this respect is sought are residents of the county, the judge properly dismissed the action.

7. The point that the record of the proceedings in the appointment of a guardian shows on its face a failure to comply with the jurisdictional requirement of ten-days notice to the three nearest adult relatives is without merit. It is admitted that the record contains a notice dated March 15, 1937, which was fourteen days before the hearing, on which appears an acknowledgment of service purporting to have been signed on March 17, 1937, by the wife and children of the alleged incompetent. It is contended that the application was not actually filed until March 29, the day that the guardian was appointed, and that the notice given before the filing of the application was not a compliance with the statute. We do not deem the point well taken. The statute does not require that the application must actually be filed before the notice of the filing of it can be given. The pertinent language of the statute is: "Upon the petition of any person on oath, setting forth that another is liable to have a guardian appointed (or is subject to be committed to the Milledgeville State Hospital), and upon proof that ten-days notice of such application has been given to the three nearest adult relatives of such person, or that there is no such relative within the State, or where such notice is waived in writing by such relatives, and affidavit is made by any one of such relatives or other person that such person is violently insane and is likely to do himself bodily injury, and where the truth of such affidavit has been verified in writing by a practicing physician appointed by the ordinary to examine such person, the ordinary shall issue a commission," etc. Under the terms of this statute the giving of the notice of the time the ordinary is to issue the commission is sufficient if given either before or after the application is filed, provided the statutory ten-days notice expires before the commission issues. The fact that the notice set out in this record stated that an application had been filed, when the record shows that it had not in fact been filed, is immaterial under the above view, since the notice also gave the date the ordinary was to issue the commission.

Judgment affirmed. All the Justices concur.