Saffold v. Anderson , 162 Ga. 408 ( 1926 )

Beck, P. J.

(After stating the foregoing facts.)

It is manifest from a reading of the first count of this petition that it sets forth no grounds for the intervention of a court of equity in this matter of partition. An application for statutory partition, so far as the facts are shown, would be ample. If in any respect statutory proceedings would not be ample, equity might intervene. The statute provides that equity has jurisdiction in cases of partition, whenever the remedy at law is insufficient, or peculiar circumstances render proceedings in equity more suitable and just. Civil Code, § 5355. But no peculiar circumstances are here set forth. “Equity will not take cognizance of a plain legal right, where an adequate remedy is provided by law.” Civil Code, § 4538. This provision of the law is applicable to partition proceedings, and it is applicable in this ease, though it would not be applied if there were peculiar circumstances making equity intervention proper under our law.

It is equally manifest that the first count does not set forth any ground for the exercise of equitable jurisdiction to restrain waste or trespass; and we can not look to the allegations of the second count to. make complete the defects in the first count. Each count in the petition must be complete in itself, and each must state a case complete in itself. If reference in one count is made to certain statements in another count and adopted as a part of the former, it might perhaps be sufficient to transfer the parts of the second count to the first. But no such references are made here, and as stating a case the first count must stand alone by itself.

The second count of this petition treats the land involved as belonging to the estate of Mrs: Sarah Saffold, the mother of petitioner. Mrs. Sarah Saffold died leaving a last will and testament. In that will she directed that at the expiration of twenty years from May 27, 1903, a period of time which had expired when this suit was brought, the lands devised be divided among all her children who came within a certain class, to wit, those falling within the provisions of item 5 of the will, which reads as follows: “At the expiration of said term of twenty years, or the remainder of said term, I want said realty divided between my children whose names appear on a quitclaim deed made to the Scottish American Loan Company, per capita, and the children of such, should they have any, per stirpesThe plaintiff in this case does not fall within the class of legatees created by the item of the will quoted. He seeks to bring himself within that class by alleging, that, “While plaintiff did not sign the same deed that the other children signed, he in fact signed a quitclaim deed to the same lands described in the deed that the other children signed, prepared by the attorney of said Scottish American Mortgage Company, long prior to the execution of said will on May 27th, 1903, and is therefore within the qualified class mentioned in said will, and is entitled to a one-sixth interest in and to said lands.” The fact that he executed a quitclaim deed to the land something like a year after the other heirs had signed the paper referred to in item 5 did not bring him within that class. The will was executed long after the date upon which the plaintiff alleges that he signed the quitclaim deed; but when the testatrix came to make the will she made only those who had signed the prior quitclaim deed the objects of her bounty. It may be that his having executed this quitclaim deed was for a consideration to himself or for the benefit of his mother, but she did not recognize it as entitling him to participate with her other children in the division of the estate. Consequently the plaintiff shows no such interest in the land belonging to the estate of his mother as entitles him to an injunction against the sale of it or against the cutting of timber upon it.

As regards the allegations that there were valuable articles of silverware and jewelry belonging to the testatrix, there is no reason why the administration should be removed from the ordinary tribunal. Hence the court did not err in dismissing the petition upon demurrer. Having held that the court did not err in dismissing the petition upon demurrer, it follows that there was no error in refusing an injunction.

Judgment a'ffvrmed.

All the Justices concur.