Shaddix v. Watson , 130 Ga. 764 ( 1908 )

Evans, P. J.

(After stating the facts.)

The suit is brought jointly by Mrs. Watson as executrix of J. P. Watson, by himself individually, and by Mrs. Lela Smith. The-title alleged is joint, and in order for them to recover it is necessary that the title proved shall be a joint one. In an action of ejectment brought in the common-law form, where a joint demise is laid in the declaration, evidence of a joint interest in the plaintiff’s lessors must be given, and without it there can be no recovery an that demise. This same rule applies to the statutory form of action when used as a substitute for the action of ejectment. Etowah Mfg. Co. v. Alford, 78 Ga. 345 ; Echols v. Sparks, 79 Ga. 417 (5 S. E. 132) ; McGlamory v. McCormick, 99 Ga. 148 (24 S. E. 941) ; Callaway v. Irvin, 123 Ga. 344 (51 S. E. 477). The proof submitted by the plaintiff was prima facie sufficient to show that the legal title to an undivided half interest in the land in controversy was at one time in the estate of J. P. Watson; and his executrix would be entitled to recover, unless the defendant showed' a paramount title. The devisees have no interest in the title until the devise to them is assented to by the executrix, and after such assent the title of the estate is divested; and as the suit was brought by the devisees and the executrix jointly, under the authorities, ■above cited they were not entitled to recover, because they have no joint title. This defect in the plaintiffs’ case renders it unnecessary to discuss whether the evidence offered by the defendant was sufficient to show that title passed out of J. P. Watson by virtue ■of the deeds upon which she relied to establish a paramount title.

Judgment reversed..

All the Justices concur.