Byrd v. Goodman , 195 Ga. 621 ( 1943 )

1. When in a complaint for land the plaintiff limits his claim of title to what is shown therein, the petition is subject to general demurrer if the petition fails to show title in the plaintiff.

2. A judgment on demurrer, until reversed, concludes the parties on all questions necessarily or actually involved in the decision, but is not conclusive of any other issue.

(a) When a judgment is susceptible of two meanings, one of which would render it illegal and the other proper, that construction will, if reasonably possible, be given it that would render it legal.

(b) When the petition, the amendment, the demurrer, and the judgment on the demurrer are all considered together, it does not sufficiently appear that the question of title was necessarily or actually involved in the decision rendered.

3. Where a grantor made to a railroad company a deed conveying only an easement or right of way, neither the grantee nor its successor railway company had any title or interest therein which it could convey after an abandonment of such easement.

No. 14460. MARCH 9, 1943. REHEARING DENIED MARCH 24, 1943. I. M. Goodman brought complaint for land against Byrd and Williams. In the petition it was alleged, that petitioner was the owner of a certain described tract identified by a plat attached to the petition; that the defendants were in possession; that the annual profits were reasonably worth $100 per year; and (paragraph 5): "Petitioner claims title to all that portion of said Southern right of way now in possession of said T. L. Byrd and Carroll Williams, by virtue of a judgment rendered by this court on the 24th day of August, 1940, which was as follows, after stating the case of T. L. Byrd versus I. M. Goodman, being a suit to recover the land herein, a demurrer having been filed thereto: ``Upon consideration of the demurrer filed by I. M. Goodman in the above-stated case, and after hearing arguments by briefs thereon, it is considered, ordered, and adjudged that the demurrer of the defendant be and the same is hereby sustained, and it is ordered that judgment be entered upon the records in said case; and said suit is hereby dismissed, with cost against plaintiff. [Signed] Chester Byars, Judge S.C., G.C.'" Other allegations are to the effect, that the said judgment was taken to the Supreme Court, and the writ of error thereon was dismissed; that the judgment of the Supreme Court was made the judgment of the trial court; and that all of said judgments pertained to the lands in controversy. Further allegations of the petition made reference to the defendants' claim of title, alleging the same to be invalid, and concludes with paragraph 8 as follows: "Petitioner shows that he has a good and perfect title to said lands, to wit, the right of way, consisting of a right of way 1530 feet in length, and two hundred feet wide, across 95 acres of land in the south half of lot of land 117, formerly in possession of the Southern Railway as a right of way over lands of J. M. Spurlin, deceased, in Woolsey district, at Lowry, Ga., and which is shown by a plat attached hereto."

The defendants filed a general demurrer to this petition, which was overruled. This forms the first exception. Thereafter the plaintiff amended his petition by alleging as follows: "1. That the defendant Byrd brought a petition to the September term, 1940, praying that the title to the land in question in this petition, formerly known as the Southern Railway right of way, be decreed into T. L. Byrd, and that plaintiff in this case deliver up for cancellation the deeds and conveyances made him by the heirs of J. M. Spurlin, and the Southern Railway; copies of the petition and the amended petition is hereto attached, marked exhibit ``B' and made a part hereof. 2. A demurrer known as a general demurrer was filed to the petition and the amended petition (a copy is hereto attached and marked exhibit C), and after a hearing and argument, the court dismissed the suit, said order of dismissal is also attached and made a part of this amended petition, on the 24th day of August, 1940, which appears in the record herein. 3. Petitioner shows his title arising from the Southern R. R. and from the heirs at law of Jasper M. Spurlin, the common grantor as appears in this record, is superior to the claim of the defendant herein." Attached as exhibits to the amendment were the following: A petition by Byrd against Goodman, alleging that petitioner was in possession of the land; that he bought it from Luke Derrick, who had acquired the same from Dickson as receiver of the estate of J. M. Spurlin. The fourth paragraph of the petition thus shown as an exhibit is as follows: "The defendant is claiming a large portion of said land under and by virtue of a quitclaim deed from the Southern Railway Company, as appears of record in Deed Book 27, page 441, and is undertaking to interfere with petitioner in possession, and occupying of said land, has written petitioner, forbidding him to go on and over said land, although petitioner is owner in fee of said land, and said defendant is trespassing on said land, and is continually trespassing on said land, and especially that portion of said land more fully described in the next paragraph of this petition." Other allegations are to the effect that the defendant Goodman claims under a quitclaim deed from the Southern Railway Company; that J. M. Spurlin is a common grantor; that Spurlin's deed to the railway company conveyed an easement only; that under said deed the railway company did not acquire title, and that the latter had abandoned its roadbed, and, after abandoning the same, could not convey to defendant Goodman any title to said land; that said deed so held by defendant is a cloud on petitioner's title, and should be so declared. The prayer was as follows: "Petitioner prays that defendant be enjoined and restrained from interfering with petitioner in his occupancy and possession of the land described in this petition, and in paragraph two thereof; that he be enjoined from coming on, passing over, cutting timber, or in anywise trespassing on said land as herein described; that the deed held by defendant, as far as it covered any portion of the lands now owned by petitioner as described in paragraph two, be declared null and void, and removed as cloud upon petitioner's title; and that process issue requiring defendant to be and appear at the next term of this court to answer this suit." Attached to the petition were a plat of the property and a copy of the deed from J. M. Spurlin to the Atlanta Hawkinsville Railroad Company (the predecessor of the Southern Railway Company). That deed was as follows:

"Georgia, Fayette County. This indenture, made this 4th day of January, 1887, between J. M. Spurlin of said county, of the one part, and The Atlanta Hawkinsville Railroad Company, incorporated under the laws of said State, of the other part, witnesseth, that the said party of the first part, for and in consideration of running their contemplated road in and along his land, as well as in consideration of one dollar to him in hand paid at and before the sealing and delivery of these presents, the receipt of which is hereby acknowledged, hath granted, bargained, and sold, and by these presents doth give, grant, bargain, and sell unto the said Atlanta Hawkinsville Railroad Company, their successors and assigns, the right of way over which to pass, at all times, by themselves, directors, officers, agents and hirelings, and servants, in a manner they may think proper, and particularly for the purpose of running, erecting, and establishing thereon a railroad with the requisite number of tracks; and to this end the limit to said right of way shall extend in width one hundred (100) feet on each side of the center line of roadway of said railroad, when completed, and to extend in length through the following described tract or tracts of land situate, lying and being in Fayette County, to wit, through, along, and over lots 117 and 118, lying in the fourth district of originally Henry now Fayette County, reserving the right to cultivate the same up to the roadbed, and provided said company put in the necessary crossings to and from the farm; and also reserve the timber that may be cut down on said right of way, running in such direction through said tract of land as the said the Atlanta Hawkinsville Railroad Company by their engineers shall think best suited for the purpose of locating and establishing their work, connected with said right of way, the company shall have the right to cut down and remove all such trees, underwood, and other growth and timber on each side of said road, as would by falling over or shading the same injure the road or other parts of said road, together with all and singular the rights, members, and appurtenances to said strip, tract or parcel of land belonging or in anywise appertaining, and more especially the right of way over the same. To have and to hold the same unto the said the Atlanta Hawkinsville Railroad Company, their successors and assigns, to their own proper use, benefit, and behoof forever, in fee simple, upon condition, and it is expressly understood, that should the said railway, contemplated as aforesaid, be not located and established on and along said strip of land, tract, or parcel of land described in the above and foregoing indenture, is wholly null and void, and of no effect; and the said party of the first part, for his heirs and assigns, will warrant and defend the title thereof unto the said Atlanta and Hawkinsville Railroad Company, their successors and assigns, against the claims of all persons whatever. In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written." Signed by J. M. Spurlin, duly witnessed, and filed for record.

The exhibit further shows that the plaintiff, Byrd, amended his petition as follows: By alleging that J. M. Spurlin had made a deed to Kate Spurlin, his wife, conveying the land in question, said deed containing the condition that the said Kate Spurlin should hold the land only as a means of support during her lifetime or widowhood; said land to revert to the estate of J. M. Spurlin. Also a later deed from Jasper M. Spurlin to his wife to the lands in controversy, containing the condition that the land was to revert to the estate of J. M. Spurlin at the death of his wife, or if she should remarry. Allegations that J. M. Spurlin died leaving a will, in which he devised his real estate to James Albert Spurlin and Paul Merrell Spurlin, to be equally divided between them; that J. M. Spurlin's widow remarried on November 25, 1920; that Dickson was named as receiver of Jasper M. Spurlin's estate in proceedings therein shown, the receiver obtaining an order to sell the lands subject to the confirmation of the court; that the receiver did sell the lands to Luke Derrick, and that said sale was confirmed. All the court proceedings in relation to the receivership and sale were attached.

The prayer of this amendment was as follows: "Wherefore plaintiff prays that this his amendment be allowed, and that the quitclaim deeds attached to the answer of the defendant be canceled as a cloud on his title, and that judgment be rendered accordingly, and that title to the land described in defendant's answer formerly known as the right of way be decreed to be in plaintiff."

To this suit as amended (reference here being made, not to the instant suit, but to the one referred to by amendment of the petition of the plaintiff Byrd) the defendant, I. M. Goodman, filed a demurrer on the following grounds:

"First. That the petition sets out no cause of action, and more important reason is that the property over which the controversy exists is not properly identified and located to sustain any claim of ownership or any right of interest thereto.

"Second. Defendant demurs generally to the complaint, because the claim of ownership is based on a blueprint said to have been made by one Steed on May 25th, 1925, and defendant shows that there is no certificate showing that Steed ever surveyed this land or that said blueprint represents the property involved, or that he was qualified to perform said survey.

"Third. Defendant demurs further, and shows that the deed from Dickson, receiver, to Luke Derrick never conveyed any portion of the Southern Railway, nor did it convey any reversionary interest of J. M. Spurlin; that all of said 200 feet of right of way across the said 95 acres of land, more or less, acreage in land lot 117, was occupied and in possession under deed to the Atlanta Hawkinsville R. R., now the Southern Railroad, at all times while Dickson, receiver, administered on the estate of J. M. Spurlin, and that said receiver Dickson had no right or interest in said right of way operated and occupied, and continued to occupy, for ten to fifteen years after Dickson, receiver, was discharged, and that Luke Derrick were never in possession of any portion of said right of way, can not be heard now, and that the petitioner herein has no legal claim whatever to said right of way.

"Fourth. Defendant shows that he and those whom he holds under have been in the quiet, open, peaceable possession for more than 50 years; all of which was well known to petitioner at all times since the conveyance was made in 1887 to the railroad, and which has been occupied until July, 1939.

"Fifth. Defendant demurs further, and shows that Byrd has no right or interest in said right of way; that Luke Derrick never had any, and that Lester Dickson, receiver, had no interest and did not sell any of the right of way of the Southern Railway.

"Sixth. That if this court holds the premises in dispute is an easement conveyed by the common grantor, Jasper M. Spurlin, then there could be no other direction than the property, the right of way, would revert back to the heirs named in the will to whom all the real estate of J. M. Spurlin was willed to P. M. Spurlin and Jas. Albert Spurlin, after the nonuse by the Southern R. R., and the said heirs being all of the heirs named in the will having conveyed said land to the defendant herein as evidenced by the court on the hearing; thus giving to the defendant a good and legal title to the property in question."

On this demurrer the judge passed the following order: "Upon consideration of the demurrer filed by the defendant, I. M. Goodman, in the above-stated case, and after hearing arguments by briefs thereon, it is considered, ordered, and adjudged that the demurrer of the defendant be and the same is hereby sustained, and it is ordered that judgment be so entered upon the record in said case; and said suit is hereby dismissed, with cost against plaintiff."

Also attached as exhibits were copies of the quitclaim deeds of the Southern Railway Company to Goodman to the strip of land in controversy; also quitclaim deeds from Paul Merrell Spurlin and the heirs of Albert Spurlin.

To the instant petition as amended the defendants renewed their demurrer, which was overruled, and they excepted. 1. There are two assignments of error. One excepts to the overruling of a general demurrer to the petition. The suit was a complaint for land. It contains an allegation that petitioner is the owner of and claims title to a described tract of land, and elsewhere an allegation that "petitioner shows that he has a good and perfect title to said lands," of which it is alleged that the defendants are in possession. The fifth paragraph of the petition was as follows: "Petitioner claims title to all that portion of said Southern right of way now in possession of said T. L. Byrd and Carroll Williams by virtue of a judgment rendered by this court on the 24th day of August, 1940, which was as follows, after stating the case of T. L. Byrd versus I. M. Goodman, being a suit to recover the land herein, a demurrer having been filed thereto: ``Upon consideration of the demurrer filed by I. M. Goodman in the above-stated case, and after hearing arguments by briefs thereon, it is considered, ordered, and adjudged that the demurrer of the defendant be and the same is hereby sustained, and it is ordered that judgment be entered upon the records in said case, and said suit is hereby dismissed, with cost against plaintiff.' Petitioner shows the judgment rendered in his favor hereon pertains to the same lands now sought to be recovered." This was the equivalent of declaring that his title is as defined in the quoted portion of his petition, and falls under the principle ruled in Dugas v.Hammond, 130 Ga. 87 (60 S.E. 268), to wit: "Where the petition departs from the statutory from and alleges that the plaintiff ``claims title' under an abstract of title annexed to the petition, this is equivalent to an allegation that the plaintiff's title is as defined in his abstract." Merely to allege that a judgment in plaintiff's favor "pertains to the lands now sought to be recovered" does not show title in the plaintiff. The demurrer to the original petition should have been sustained.

2. Subsequently the plaintiff amended his petition. A general demurrer to the amended petition was overruled, and error is assigned on this ruling. The amendment added at the end of paragraph 5 of the petition, which is set forth above, a statement that defendant Byrd brought petition against him, praying that the title to the land in question, formerly known as the Southern Railway right of way, be decreed in him (Byrd), and that plaintiff (Goodman) deliver up for cancellation the deeds and conveyances made to him by the heirs of J. M. Spurlin and by the Southern Railway; that a general demurrer to that petition as amended was filed, and upon hearing said demurrer the court dismissed the amended petition. The exhibits there referred to showed a petition by Byrd against Goodman, alleging that Byrd is in possession of certain described land, setting forth his muniments of title; that Goodman is claiming a large portion thereof, embodying the basis of his claim of title; that defendant is undertaking to interfere with plaintiff's possession, and that defendant is trespassing thereon, has forbidden plaintiff to go thereon, and depriving plaintiff of the use and occupancy of said land. The prayers were for injunction, and that the deed of defendant be canceled. The plaintiff in that suit amended his petition by alleging other facts tending to show that the defendant therein had no valid title, and among the prayers to this amendment were that the title to the land be decreed in plaintiff. The amended petition in the first suit was demurred to on six different grounds, among them, that no cause of action was set forth. It was not demurred to on the ground that the plaintiff showed no title. The judge passed an order adjudging that "the demurrer of the defendant be and the same is hereby sustained," and dismissing the suit. The question here presented is whether, with the record of the former suit shown in the amendment to the petition, the judge erred in refusing to sustain the general demurrer.

If the judgment on the demurrer in the first suit had the effect of adjudicating that the title to this land was not in Byrd, then the general demurrer to the amended petition in the instant case was properly overruled; otherwise not.

We take no issue with the contention that, the trial court having sustained the demurrer and dismissed the petition, there is no presumption that the ruling was based on any particular ground of the demurrer, but the judgment will be treated as sustaining the entire demurrer upon all of its grounds. Hadden v. Fuqua, 194 Ga. 621, 632 (22 S.E.2d 377). That, however, is beside the issue. In order for Goodman to benefit by the application of the rule, it would have to appear that in some ground of the demurrer Goodman had urged that Byrd's petition showed on its face that the latter had no title. The demurrer is copied into the statement of facts. It contains six divisions, referred to as grounds. The larger part of it is speaking in character. If it was meant thereby to challenge the sufficiency of the title asserted by Byrd, such purpose is not apparent. It is true that the demurrer contains the statement, "that the petition sets out no cause of action;" but even the petition in the instant suit does not contain the statement that the title was adjudicated in the first suit, or that the lack of a cause of action was the lack of title. InMcElmurray v. Blodgett, 120 Ga. 9, 15 (47 S.E. 531), it was said: "It has also been held that a judgment on demurrer, until reversed, concludes the parties on all questions necessarily involved in the decision. Georgia Northern Ry. Co. v. Hutchins [119 Ga. 505]. It would seem to follow from this that it would not conclude upon any question not necessarily involved in the decision on the demurrer. When the petition, the amendment, the demurrer, and the judgment on the demurrer are all considered together, it sufficiently appears that the question as to the proper construction of the paper was not necessarily involved in the decision rendered on the demurrer." If in such case the question was not necessarily involved in the ruling on demurrer, it would be incumbent on the party to show that it was actually determined in the ruling made. Draper v. Medlock,122 Ga. 234 (50 S.E. 113, 69 L.R.A. 483, 2 Ann. Cas. 650). Applying these principles to the pleadings before us, it appears that the question of Byrd's title was not necessarily involved in the ruling on the demurrer; nor is it shown that it was actually determined therein. The prayers of the original petition were, for process, for injunction to prevent the defendant from trespassing, or coming upon the land; and that the deed held by defendant be removed as a cloud. In an amendment, he added a prayer that title to the land be decreed in him.

The court may well have concluded that, taking its averments as a whole, the petition did not show that the plaintiff was in possession, and that as to injunctive relief the petition stated no cause of action, because the injunction would have been mandatory. Braswell v. Palmer, 191 Ga. 262 (11 S.E.2d 889).

For the same lack of averment as to possession in himself, construing the petition most strongly against the pleader, the court may have concluded that no cause of action was set forth as to removal of the cloud. Lightner v. Belk, 178 Ga. 766 (174 S.E. 349). This would leave standing alone the prayer that title be decreed in him, which, with the other features out of the case, would be merely one to seek a declaratory judgment. No court would entertain a petition that only sought to decree a title in the plaintiff when no need is shown to have it so decreed. SeeSouthern Railway Co. v. State, 116 Ga. 276 (42 S.E. 508);Fowler v. Fowler, 159 Ga. 239 (125 S.E. 495); Bowden v.Georgia Public Service Commission, 170 Ga. 505 (153 S.E. 42); Byrd v. Equitable Life Assurance Society, 185 Ga. 628 (196 S.E. 63), and as particularly in point, Blackwell v.Blackwell, 188 Ga. 388 (3) (4 S.E.2d 168).

3. There is another reason that restrains us from giving the decision on the demurrer the effect claimed for it by counsel for defendant in error. If, as indicated above, there be correct bases on which the decision on demurrer may rest, it will not be assumed that the trial judge passed these by and placed his ruling on an unsound one. The settled doctrine in the construction of a statute is to give it, if possible, a rendering which will make it valid rather than invalid. Head v.Cigarette Sales Co., 188 Ga. 452 (4 S.E.2d 203). This is true also as to the construction of an agreement. Equitable Loan Security Co. v. Waring, 117 Ga. 599 (44 S.E. 320, 62 L.R.A. 93, 97 Am. St. R. 177). The same salutary rule will be applied by this court when confronted with a judgment. The court below is presumed to have decided correctly, until the contrary is shown. Stubbs v. Central Bank of Georgia, 7 Ga. 258. Compare Skinner v. Roberts, 92 Ga. 366 (17 S.E. 353). This leads to this inquiry: Did Byrd's petition in the original suit show title in him to the land involved? And did it allege facts, which if true, showed that Goodman had no title?

The deed from J. M. Spurlin to the Atlanta Hawkinsville Railroad Company, a copy of which was attached to Goodman's suit, conveyed only a right of way or an easement, which terminated by abandonment or nonuse when the successor railroad company ceased to use the land for railroad purposes. Such is the only reasonable interpretation of the instrument under consideration. It is similar in language and effect to the deeds considered inLouisville Nashville Railroad Co. v. Maxey, 139 Ga. 541 (77 S.E. 801), Atlanta, Birmingham Atlantic R. Co. v.County of Coffee, 152 Ga. 432 (110 S.E. 214), Rogers v.Pitchford, 181 Ga. 845 (184 S.E. 623), and Jackson v.Crutchfield, 184 Ga. 412, 416 (191 S.E. 468), and is unlike the deeds involved in Samuel Mitchell Estate Inc. v. Western Atlantic Railroad Co., 167 Ga. 728 (146 S.E. 556), Johnson v. Valdosta c. R. Co., 169 Ga. 559 (150 S.E. 845), and Woods v. Flanders, 180 Ga. 835 (181 S.E. 83).

Since the deed conveyed only an easement, the fee-simple title remained in the grantor and was subject to sale or other disposition by him at any time. He conveyed the property to his wife on condition that it would revert to his estate on her remarriage, and she did remarry in 1920, after his death in 1919. The fee-simple title which remained in him after executing the deed to the railroad, and the remainder or reversionary interest which existed after executing the deeds to his wife, both constituted an interest which the grantor, J. M. Spurlin, could dispose of by will if he elected to do so, being the whole title or interest less the easement granted to the railroad company, and the estate for life or widowhood granted to Mrs. Spurlin.Cooper v. Davis, 174 Ga. 670 (163 S.E. 736); MetropolitanLife Insurance Co. v. Hall, 191 Ga. 294 (12 S.E.2d 53). It appears that he died in 1919, leaving a will in which he bequeathed this land along with other lands to his son, James Albert Spurlin, and his grandson, Paul Merrill Spurlin. It does not appear that any legal representative ever assented to such legacy. On the contrary, in a suit in equity in which both legatees were made parties a receiver was appointed; and the lands were later sold by the receiver under an order of the superior court, and the sale was duly confirmed. By this sale all interest and title of the estate of J. M. Spurlin and of these two legatees was conveyed to Roscoe Luke and P. W. Derrick, who conveyed the property to Byrd. From the allegations contained in Byrd's petition, this sale by a receiver appears to have been regular and to have conveyed title to the entire tract described as ninety-five acres, more or less, including the strip of land which was at that time used as a railroad right of way. The conveyance of the whole tract without reservation necessarily conveyed the whole interest of the estate of J. M. Spurlin; and so when the right of way was abandoned, the entire interest vested in the purchaser. Since the receiver's sale conveyed all interest of J. M. Spurlin and of the legatees under his will to Byrd's predecessor in title as of that date, December 30, 1926, there remained nothing which could later be conveyed by the heirs at law of J. A. Spurlin, or, rather, by one of the legatees and the heirs at law of the other. According to his allegations, Byrd has title to the strip of land in controversy as against Goodman.

What has just been said demonstrates that Goodman's assertion contained in the third paragraph of the amendment to his petition in the instant case, to wit, "Petitioner shows his title arising from the Southern R. R. and from the heirs at law of Jasper M. Spurlin, the common grantor, as appears in this record, is superior to the claim of the defendant herein," should also have been stricken on general demurrer. Goodman's insistence that the former judgment adjudicated that the title to this land was not in Byrd can not be sustained. Our conclusion is that the court erred in not sustaining the general demurrer.

Judgment reversed. All the Justices concur.