Frazier v. Broyles , 145 Ga. 642 ( 1916 )

Hill, J.

The plaintiffs assign error on the order of the court dismissing the petition upon the defendants’ demurrer. The suit was brought in the county where the land involved was located and in which none of the defendants resided. If it was an action “respecting title to lands,” the venue was properly laid; but if an equitable action, the court did right in dismissing it for want of jurisdiction. The prayer of the petition is not only to recover the land in ejectment, but also to cancel the deeds from Mrs. Adams to Broyles and Callaway and from the latter to the Lumpkin Investment Company. One test as to whether a suit to recover land is one of ejectment simply, and is a case “respecting title to land,” is whether the plaintiff can recover on his title alone, or whether he must ask the aid of a court of equity in order to recover. If the allegations are sufficient to show that the plaintiff can recover on his title alone without the aid of a court of equity, the case is one of ejectment or complaint for land. But if this is not the case, and equitable aid is necessary and asked, the petition is equitable in character. In the present case the petition alleges title in Mrs. Adams, who was the mother of some and grandmother of another of the plaintiffs. It also alleges title out of her and into Broyles and Callaway; and from the latter into the Lumpkin Investment Company. Thus it appears that the plaintiffs could not recover on that chain of title; for it shows the title on which they seek to recover out of their ancestor and into some of the defendants. In order, therefore, to recover they must get rid of the titles to Broyles and Callaway and to the Lumpkin Investment Company. And to do that they invoke equitable relief by praying that those deeds be canceled for the reasons set out in the petition. This relief is clearly equitable, and not such as a court of law can afford. Martin v. Gaissert, 134 Ga. 34, 39 (67 S. E. 536); Smith v. Bryan, 34 Ga. 53-61. In order to recover, therefore, the petitioners must obtain substantial equitable relief against Broyles and Callaway, who reside in Eulton county. Their deeds are sought to be canceled. The plaintiff can not proceed without them as parties. And the rule in such cases is provided by the constitution, which declares that “Equity cases shall he tried in the county where a defendant resides against whom substantial relief is prayed.” Art. 6, sec. 16, par. 3 (Civil Code, § 6540). See Brown v. Martin, 137 Ga. 338, 344 (73 S. E. 495, 39 L. R. A. (N. S.) 16); Martin v. Gaissert, supra; Saffold v. Scottish-American Mortgage Co., 98 Ga. 785 (27 S. E. 208). As substantial relief is prayed against Broyles and Callaway, who reside in Eulton county, the superior court of DeKalb county has no jurisdiction over them.

As the above ruling on the question of jurisdiction disposes of the case, it is unnecessary to decide whether a widow to whom and her minor children a year’s support has been set apart in realty can convey the real estate. In this connection see Howard v. Pope, 109 Ga. 259 (34 S. E. 301); Cox v. Cody, 75 Ga. 175 (2); Swain v. Stewart, 98 Ga. 366 (2), 368 (25 S. E. 831); Ferris v. Van Ingen, 110 Ga. 102 (7), 118 (35 S. E. 347); Ragan v. Shiver, 130 Ga. 474 (61 S. E. 1). The court did not err in sustaining the demurrers.

Judgment on the main bill of exceptions affirmed. Cross-bill of exceptions dismissed.

All the Justices concur, except Lumpkin, J., disqualified.