Wheeler v. Wheeler

Holden, J.

(After stating the foregoing facts).

Thomas Wheeler Sr. bought the land from Brown, who in 1882 made Wheeler “a warranty deed in fee simple” to the same. Title to all minerals and mineral interests in the land passed under this deed to Wheeler. Collinsville Granite Co. v. Phillips, 123 Ga. 830 (15), 843 (51 S. E. 666). Wheeler was in possession of the land at the time of his death in 1888 and for several years prior thereto, and since his death his heirs at law, consisting of his widow and eight minor children, have been in possession. It does not appear that Brown, or any one else claiming under him, has undertaken to possess themselves of any minerals that may be in or on the land, or to interfere-in any way with the right to and possession of such minerals by the widow and children of Thomas Wheeler, deceased. Wheeler acquired the mineral interest in the land from Brown, and died in 1888 owning the same. After Brown had thus conveyed title to the mineral interest to Wheeler, the deed by Brown could not of itself pass any title thereto to another. If Brown undertook to sell and convey the mineral interest in his own name in behalf of the heirs at law of Wheeler, if any right of action exists against Brown, or his estate, for the amount he received in making such sale, such right of action would be in such heirs. There would certainly be no right of action in behalf of the administrator of Wheeler for such amount. According to the allegations of the petition, Brown in conveying the mineral interest was undertaking to act in the interest of the heirs as individuals owning the land; and if any right of action exists in any one, it exists in them. Eor this reason, if for no other, the demurrer to the petition should have been sustained and the petition dismissed. Because the court erred in not dismissing the petition on general demurrer, everything occurring after that was nugatory; and it is unnecessary to discuss the grounds of the motion for a new trial. Southern Ry. Co. v. Pope, 129 Ga. 842 (3), 843 (60 S. E. 157) ; Louisville &c. Railroad Co. v. Cody, 119 Ga. 371, 372 (46 S. E. 429).

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.