Chase v. Endsley , 165 Ga. 292 ( 1927 )

Beck, P. J.

(After stating the foregoing facts.) This case was dismissed upon demurrers filed by Mr. and Mrs. Endsley and by Mrs. Heery. If the suit as originally brought is a case “respecting titles to land,” it should have been brought and tried in the County of DeKalb, where the land lies. But we think that it is essentially an action to enjoin a continuing trespass. Of course the title to the land is incidentally involved, as has been ruled in several cases decided by this court; but the fact that the title is thus incidentally involved does not render it a case “respecting titles to land.” In Huxford v. Southern Pine Co., 124 Ga. 181, 188 (52 S. E. 439), it was said: “If the purpose of the suit were to recover possession of the land, of course the superior court of Coffee County [where the land was not located] would have no jurisdiction. Such was not the object to be attained by the judgment prayed. It was simply to restrain the defendant from doing acts prejudicial to the rights of the plaintiffs, one of whom claimed to be the owner of the land. The title to the property was incidentally and collaterally involved, but it was not such a suit respecting title to land as under the constitution is required to be brought in the county where the land lies. It was incumbent upon the plaintiffs to show that they had such an interest in the property as a court of equity would protect, and .they showed this interest by showing a complete chain of title.” And in Powell v. Cheshire, 70 Ga. 357 (48 Am. R. 572), it was held: “A bill in equity to enjoin a trespass upon realty by felling timber, is not such a suit respecting the title to land as must be brought in the county where the land lies. The proper venue of such a case is the county of the residence of a defendant against whom substantial relief is -prayed.” We think, therefore, that inasmuch as the petition shows a continuing trespass, and that petitioner had such an interest in the property (under the allegations which are to be taken as true upon demurrer) as a court of equity would protect, and a right to a conveyance of the property in accordance with the terms of the bond for title, the court should have retained the case for hearing upon the issues made by the petition and the answers. We think also that the court properly made Mrs. Heery, the vendor of the land, a party to the proceedings. When the question as to whether the two lots of land in question were included in the land sold to Mrs. Chase, or were included by mistake as contended by Mrs. Heery, is determined, then the question as to how much of the purchase-money Mrs. Chase must pay can be determined, and it can be determined in this suit. As the matters stood at the time Mrs. Heery filed her suit in the city court <fi Decatur to recover judgment upon the purchase-money notes, Mrs. Chase, according to her allegations, would be placed in a position where she could inadequately urge a defense to these notes; for the0question as to whether or not the two lots in controversy had been sold to her by Mrs. Heery will be undetermined. All these questions can be determined in the one equitable suit. And the court having erred in dismissing the case upon general demurrer, the further proceedings were nugatory. Of course this court is not passing upon the merits of the special demurrers. The lower court disposed of the entire case upon the general demurrers. Upon a rehearing, the special demurrers can be there disposed of. Judgment reversed.

All the Justices concur.