Doe ex dem. Adams v. Roe

— Lumpkin J.

By the Court.

delivering the opinion.

This was an action of ejectment brought to recover a tract of land in Hart county. There were several demises in the declaration. I need mention two only. One is in the name of Samuel Adams, to whom the land was granted by the State in 1820. The other a joint demise from three of the Messrs. Skeltons; the defendant, McDonald, holds under D. M. Johnson, to whom the land ivas granted in 1856.

Both grants cover the premises in dispute.

It appeared on the trial, that this suit was brought at the-.instance and for the benefit of the Messrs. Skeltons, and that Samuel Adams had given no authority to use his name; and that a recovery, if had, would enure to the sole use of the Skeltons. The title of the Skeltons was a deed from one Dooly, of a recent date, but there was not a particle of proof connecting Dooly’s title with that of Adams, the original grantee.

Upon this testimony the Judge ruled, and we think very ■properly, that the only recovery that could be had in the ease, was upon the demise of Adams, and that if the evidence showed,as it clearly did, that the action was not brought by him, and that the recovery would not enure to his 'benefit, that they ought to find for the defendant. The jury returned a verdict in accordance with these instructions.

The point decided in this case, has been several times before this Court. And we have uniformly held, that to authorize a plaintiff in ejectment, to use the name of another, he must show some connection between his title and that of the person in whose name he sues, Couch vs. Turner et al., 17 Ga. Rep. 487; Kinsey vs. Sensbough et al. ibid. 540; that he is not invoking the paramount outstanding title to rob others, but to protect himself. Were it otherwise, there would be no end to litigation. Suppose you turn out McDonald, and put the Skeltons in possession under Adams’s title, what is to prevent McDonald or Johnson or someone else, from bringing ejectment against the Skeltons, by a demise in the name of Adams, and eject them ?

It is suggested by Mr. Millican, arguendo, that should a •new trial be awarded, they expect to be able to establish a privity between the title of Adams and the Skeltons. A new trial is not needed for this purpose. From the fictitious character of the action, the suit can be recommenced and the proof made, if it exists and can be procured.

We are of the opinion that the judgment below should be affirmed.

Judgment affirmed.