Roe v. Doe ex dem. Smith , 32 Ga. 445 ( 1861 )

By the Court.

Jenkins, J.,

delivering the opinion.

There was in this case, in the Court below, a motion for a netv trial on several grounds, all of which being overruled, and the motion refused, plaintiff in error excepted. One of these grounds assigns error in the refusal of the Court to dismiss the suit, after the evidence on both sides was closed, because it appeared from the proof, “that one Keith was prosecuting said action of ejectment, solely upon the demise of one Joseph Smith, for the benefit of said Keith, Avithout having connected himself Avith the title of said Smith, and without any authority from him to use his name, to oust one in possession of the land under claim of right and title.”

Another ground assigns error 'in the refusal of the Court to charge, Avhen so requested, that under such circumstances the plaintiff could not recover.

The question involved in both grounds is the same, and was decided by this Court in Adams et al., vs. McDonald, 29th Ga. Reports, 571. The facts in that case and in this, quoad the question under consideration, are identical, and it was there ruled, that “ to authorize the plaintiff in ejectment to use the name of a third person as lessor, he must show that he has a bona fide subsisting claim to the premises, and that there is a connection between his title and that of the party upon Avhose demise he seeks to recover; or that he hás the authority of that person in whom the paramount title is vested, to institute the suit in his name.'

The learned Judge cites in support of that ruling the cases, Couch vs. Turner et al., 17th Ga. Reports, 487, and Kinsey vs. Sensbough, Ibid, 540.

The judgment of the Court beloAV, in the case at bar, is in conflict Avith that case, and must therefore be reversed.

Courts should not permit parties to avail themselves of the fictitious character of the action of ejectment to perpetrate injustice to others.

Let the judgment be reversed.