Walker v. Walker , 266 Ga. 414 ( 1996 )

Fletcher, Presiding Justice,

concurring specially.

This case began as one for statutory partitioning brought under OCGA § 44-6-160 and to quiet title under OCGA § 23-3-60. Because neither statutory procedure provides for the payment of fees out of a common fund, except in limited circumstances not relevant here, I concur in Division l.¹ I cannot agree with the analysis of Division 2 because I believe that the trial court erred in considering this case as one in equity and we should reverse the trial court on this basis alone.

The most rational explanation for the trial court’s award of attorney’s and surveyor’s fees out of the common fund is that the court treated the case as one for equitable partitioning under OCGA § 44-6-140. Under § 44-6-140, attorney fees may be charged out of a common fund under appropriate circumstances.² Nothing, however, in this case transformed this action brought under § 44-6-160 into an action for equitable partitioning under § 44-6-140.³

Nor does the fact that the action began as a quia timet action under the Quiet Title Act of 1966, OCGA § 23-3-60 et seq., authorize the trial court to convert the action to a “conventional” quia timet action under OCGA § 23-3-40.⁴ Even if such a conversion were possible, the statutory procedures under § 23-3-40 do not authorize an award of attorney fees.⁵ Indeed, rarely, if ever, would a conventional quia timet action generate a common fund out of which to award attorney fees.

Finally, the decision in Alford u. C & S Nat. Bank⁶ did not authorize the trial court to consider equitable principles to award attorney fees out of the common fund. In Alford, the court disallowed an award of fees in a will contest between the widow and beneficiaries of a trust established by the will. The quotation from Alford that the majority relies upon is itself a quotation from Ewing v. First Nat. Bank.⁷ Ewing more fully explains that the “generally recognized exception” allowing the court to award fees from a common property or to require proportional contribution applies in actions brought to protect the beneficiaries of a trust.⁸ The majority stretches this exception too far by suggesting that a trial court may consider an award of attorney fees whenever the trial court applies equitable principles, regardless of the absence of statutory authority for such an award.

I am authorized to state that Justice Carley joins in this special concurrence.

Decided March 15, 1996. Adams & Adams, Owen J. Adams, for appellant. Walker L. Chandler, for appellees.

1 See Neal v. Neal, 140 Ga. 734 (79 SE 849) (1913) (in a statutory partition action, attorney fees could not be paid from the common fund).

2 Werner v. Werner, 196 Ga. 1 (25 SE2d 676) (1943).

3 The distinction between law and equity is still viable in the separate forms of action for partitioning land. Burnham v. Lynn, 235 Ga. 207 (219 SE2d 111) (1975).

4 An action under OCGA § 23-3-40 may be brought only by one in actual possession. The plaintiff here did not allege she held possession; nor did she allege any facts that would allow an exception to this general rule. See Hale v. Turner, 183 Ga. 593, 595-596 (189 SE 10) (1936).

5 See OCGA § 23-3-41 (authorizing taxing of costs only).

6 237 Ga. 194 (226 SE2d 905) (1976).

7 209 Ga. 932 (76 SE2d 791) (1953).

8 Id. at 934.