Foster v. Rowland , 194 Ga. 845 ( 1942 )

1. In a statutory action for land the object of annexing an abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied on at the trial; and defects in the abstract will not render the petition demurrable.

2. A plaintiff in an action for land, in statutory form, can state in the petition facts showing title, instead of annexing an abstract of title.

3. The abstract of title is not a part of the petition in a statutory action for land, unless voluntarily made so by the pleader. However, if the petition and the abstract incorporated therein or attached thereto and expressly made a part thereof shows that the plaintiff limits his claim of title to that shown by the abstract, the petition is demurrable if the abstract fails to show a good chain of title in the plaintiff.

4. An allegation that a party is the owner of specified realty is an allegation of an ultimate fact, and not a conclusion of law.

5. Where in a statutory complaint for land, and for timber cut and removed therefrom, the plaintiff in his petition unqualifiedly alleges in one paragraph that he is the owner of land and in another paragraph alleges that he and his predecessors in title have been in peaceable possession of the land for more than thirty years before the filing of the petition, which also avers that the defendant about two years and three months previously to the filing of the petition took possession of the land and cut and removed timber therefrom, although the plaintiff alleges that his title is derived through certain persons, and, responsive to defendant's demurrers, by amendment to the petition the plaintiff alleges in more detail how his title is derived, whether or not the amendment is necessary, his petition as amended does not show such reliance on and limit of his claim of title by the abstract as would authorize a dismissal of the action on the grounds of demurrer ruled on.

No. 14356. NOVEMBER 10, 1942. T. B. Foster filed a petition against G. L. Rowland, seeking to recover certain land and a judgment for timber alleged to have been cut and removed therefrom. After naming the parties and averring jurisdiction, the petition alleged: "2. Plaintiff is the owner of a tract of land described as follows: [describing 2.63 acres sued for]. 3. Plaintiff's title is derived through the Calhoun National Bank, J. W. McBrayer, and the D. N. McBrayer estate, and predecessors in title, who have owned and been in possession thereof for more than thirty years. 4. Defendant has within the last two years and three months taken possession of said land, and cut and removed valuable saw timber therefrom, in the amount of twenty-five thousand feet, of the value of $8.00 per thousand feet; and said defendant refuses to surrender possession of said land to this plaintiff on demand, or to pay him for the timber so cut by him. 5. Plaintiff is entitled to recover from defendant a verdict and decree for said land, and also for $200 principal, and interest thereon from January 1, 1940, for the timber cut by him and removed from said land." These allegations were followed by prayers for recovery of the land, and for judgment against the defendant for the timber cut and removed. The defendant demurred to the petition, on the grounds: (1) that no cause of action is set out, (2) that paragraph three of the petition is a conclusion of the pleader and insufficient to show title; and (3) to the "petition as a whole," because there is not set out any abstract of title of the plaintiff. By amendment the plaintiff added to the petition allegations as follows: "3 a. Plaintiff shows that his title to said land is derived as follows: 1. J. W. McBrayer to the Calhoun National Bank, December 30, 1921, conveying one half interest in lands sued for, and other land; deed recorded in book No. 1, page 93. 2. J. W. McBrayer to the Calhoun National Bank, July 15, 1924, conveying one half interest in lands sued for, and other land, book No. 3, page 257. 3. The Calhoun National Bank (as attorney in fact for J. W. McBrayer) to the Calhoun National Bank, August 4, 1925, conveys one half interest in the lands sued for and other lands, book No. 4, page 136. 4. J. H. Gordon, as admr, of D. N. McBrayer estate, to the Calhoun National Bank, June 17, 1928, lands sued for and other lands, book No. 6, page 200. 5. The Calhoun National Bank to T. B. Foster, January 12, 1929, book No. 6, page 296, lands sued for and other lands. 3 b. Plaintiff shows that all references above to book records refers to books in office of clerk of Gordon superior court, and the deed records of said county. 3 c. Plaintiff shows that J. W. McBrayer and D. N. McBrayer had been in peaceable possession of said land sued for, for many years prior to 1921. He shows that this plaintiff and his precedessors in title, as shown in the abstract above, for more than twenty years, continuously up to the time defendant wrongfully entered said land on or about the 1st of July, 1939, and cut and removed the timber as alleged in his original petition."

The amendment was allowed and filed. The court ordered as follows: "Upon consideration of the within demurrer the plaintiff is required to amend, to meet the criticism of special demurrer, within ten days from this date, or the petition of plaintiff is dismissed. Ruling on general demurrer reserved." The plaintiff filed no further amendment, but excepted to the sustaining of the demurrer. 1. "To the petition for the recovery of land and mesne profits the plaintiff shall annex an abstract of the title relied on for such recovery." Code, § 33-117. In Yonn v. Pittman, 82 Ga. 637 (9 S.E. 667), this court held: "An action of complaint for land can not be dismissed on demurrer to the abstract of title annexed to the declaration. The object of the abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied upon at the trial." Peeples v. Rudulph, 153 Ga. 17 (111 S.E. 548); Allen v. Potter, 153 Ga. 24 (2), 27 (111 S.E. 549); Callahan v. Beeland, 170 Ga. 760 (154 S.E. 226);Bentley v. Phillips, 171 Ga. 866 (156 S.E. 898); Gray v.Bradford, 194 Ga. 492 (22 S.E.2d 43). In Rooks v.Tucker, 129 Ga. 744 (59 S.E. 778), it was held: "A plaintiff bringing suit for land, in statutory form, can allege facts showing title inside the petition instead of annexing thereto an abstract of title." The abstract of title is not a part of the petition in a statutory action for land, unless voluntarily made so by the pleader. However, if the petition and the abstract incorporated therein, or attached thereto and expressly made a part thereof, shows that the plaintiff limits his claim of title to that shown by the abstract, the petition is demurrable if the abstract fails to show a good chain of title in the plaintiff.Chancey v. Johnson, 148 Ga. 87 (95 S.E. 975);Kirkpatrick v. Faw, 180 Ga. 764 (4) (180 S.E. 727). When the plaintiff in a statutory action for land alleges that he claims title thereto by being seized thereof in fee, the mere fact that an abstract is annexed does not make the petition subject to dismissal on demurrer on the ground that the petition sets forth no cause of action, and that the abstract attached to the petition fails to show legal title in the plaintiff. Crawford v. Carter, 146 Ga. 526 (91 S.E. 780). But in Dugas v. Hammond, 130 Ga. 87 (2, 3) (60 S.E. 268), it was held: "The allegation in the statutory form of complaint for land, that the plaintiff `claims title' to the land, is the equivalent of an allegation of title. Where the petition departs from the statutory form and alleges that the plaintiff `claims title' under an abstract of title annexed to the petition, this is equivalent to an allegation that the plaintiff's title is as defined in his abstract."

In Chidsey v. Brookes, 130 Ga. 218 (60 S.E. 529, 14 Ann. Cas. 975), the abstract of title was by reference made a part of the petition, and this court said: "In the recent case ofDugas v. Hammond, ante, 87 (60 S.E. 268), this court held that where the plaintiff set forth in his petition the title upon which he relied, and that title was insufficient in law, the petition should be dismissed on demurrer." An allegation that a party is the owner of specified realty is an allegation of an ultimate fact, and not a conclusion of law. Domin v. Brush,174 Ga. 32 (161 S.E. 809); Gray v. Bradford, supra. Nothing to the contrary was held in Weyman v. Atlanta,122 Ga. 539 (2, 3) (50 S.E. 492), which was an equitable action seeking to remove an alleged cloud upon title, and in which the petition averred that the city lot was vacant, but did not aver that the property belonged to Mrs. Thompson at the time it was levied on for taxes, and the fact that both parties claimed under a common grantor was relied on. In the instant case the plaintiff unqualifiedly alleges (paragraph 2) that he owns the land; and (paragraph 3) he alleges that he and his predecessors in title have owned and been in possession thereof for more than thirty years. Although he alleges (paragraph 3) that his title is derived through certain persons, and, responsively to the defendant's demurrer, by amendment he alleges in more detail how his title is derived, whether or not the amendment was necessary, we do not think the plaintiff's claim of title was limited to the abstract, so as to make the petition or abstract demurrable within the rulings in the cases cited, supra. Accordingly, it was error to dismiss the plaintiff's action on demurrer.

Judgment reversed. All the Justices concur.