Ashley v. Cook , 128 Ga. 836 ( 1907 )

Atkinson, J.

(After stating the facts.) The court having placed the decision only upon the questions of misjoinder of causes of action and nonjoinder of necessary parties, we will deal only with those questions. The allegations of the petition, in effect, charge that Mary L. Floyd Jones, by virtue of the security deed, acquired a title to all the property as security for the debt, which was superior to the title of the plaintiffs. It follows that the lien of the judgment upon which execution issued, which was admittedly valid, was also superior to the title asserted by the plaintiffs. If the sale by the sheriff to W. J. Cook and the sale by the sheriff to Daniel Cummings were both void as alleged, neither of these acquired any title whatever to the land which the sheriff conveyed to them respectively. But it is alleged that each of them was subrogated to the rights of Mary L. Floyd Jones. See Ashley v. Cook, 109 Ga. 653. If they were subrogated to anything, it was to the security which she held. A mere security was the greatest interest which she held in the land. The greatest right which they acquired under the equitable -right of subrogation was a right to participate in common in the control of the unsatisfied security for their reimbursement. If in the course of collection, by lawful sale or otherwise, they should make a new arrangement- by which they would acquire lawful right to the identical property attempted to- be sold to them respectively by the sheriff, that-would be a different matter altogether. So far as the allegations go, Mrs. Mary L. Floyd Jones also has an interest in the security in common with W. J. Cook and Daniel Cummings, because it is not alleged that she has been fully paid. It is alleged that W. J. Cook/ who did not have title, conveyed the land bought by him to W. B. Cook, who .did not acquire title, but only took the right of subrogation theretofore held by W. J. Cook. That is not alleged in so many words, but it is necessarily implied from a fair construction of the declaration. If that be-true, W. E. Cook had no other right than in common with the others, to have the security deed enforced for his benefit to satisfy any interest in the security to which he might be entitled by force of the alleged equitable assignment by W. J. Cook. It is thus seen that under the theory by which it is sought to recover, all of the defendants are obliged to resort to the enforcement of the same security for whatever rights they may have, and that their several equities must be satisfied from a common security. The security will be enforced for the benefit of all, as their interests may appear. Under these conditions, there are no separate and distinct causes of action united in one suit and the action is not multifarious. See, in'this connection, White v. North Georgia Electric Co., 128 Ga. 539.

From what has been said it is manifest that under the allegations Mary L. FÍoyd Jones has an interest in the security, and also that the estate of W. J. Cook is substantially interested. The security as a whole could not be decreed satisfied, nor could a complete accounting be had, without making them parties. Their respective interests extend to every feature of the ease. The facts of the demise of W. J. Cook, and omission to have administration upon his estate between the time of filing the suit and the hearing of the demurrer, do not render it the less necessary that his estate be made a party. It is sought to make his estate account for rents and profits, and also to bring about conditions which could render it liable upon a warranty of title. Neither of these things could over be done without an opportunity afforded to be heard. Neither Mary L. Floyd Jones nor the estate of W. J. Cook was a party; and in the absence of proper amendments, the court was authorized to dismiss the petition upon demurrer raising the point that they should be parties. The sheriff was a mere nominal party without any real or actual interest, and the failure to make him a party was not cause for dismissing the petition. See, in this connection, 15 Ene. PL & Pr. 600, and cit.; Beall v. Blake, 16 Ga. 119; Smith v. Pate, 51 Ga. 246. The judgment of the court dismissing the case because of the omission to make Mary L. Floyd Jones and the estate of W. J. Cook parties was authorized. Nothing in the judgment now rendered will operate as a bar to another suit with all the proper parties thereto.

Judgment affirmed.

All the Justices concur.