Paulk v. Ensign-Oskamp Co. , 123 Ga. 467 ( 1905 )

Evans, J.

(After stating the facts.) Only one question is presented by this record, and that is, whether, under the allegations of the petition of T. M. Paulk against H. H. Tift and the Ensign-Oskamp Company, the resident defendant, Tift, is a necessary party. The prayer of the petition is for a cancellation of the extension .of the lease from William Paulk to H. H. Tift, and so much of the conveyance of Tift to the Ensign-Oskamp Company as purported to convey the sawmill timber upon the land described for a period of six years from the boxing of the timber-for turpentine purposes. It will be observed, from the allegations in the petition, that Tift warranted to the Ensign-Oskamp Company the timber included in the conveyance. Eor the reasons alleged in his petition the plaintiff prays a cancellation of these two conveyances. Tift was liable upon his warranty to the lumber company, and his conveyance can not be cancelled and declared void in a suit against the 'lumber company without making him a party. In the cancellation of a deed the grantor is a necessary party. Palmer v. Inman, 122 Ga. 226. Besides, the allegation is that the extension of the lease alleged to be void for lack of consideration is a lease, not to the lúmber company, but to Tift. It is true that the petition alleges that the lumber company procured this extension of the lease after the conveyance of the timber by Tift to it; but while the benefit flowing from the extension of the lease may be to the lumber company, still the person to whom the extension is made is not the lumber company, but the resident defendant. Tift, therefore, was interested not only in the cancellation of the extension of the lease, but also in the vacation of his deed in which he had warranted the title of the timber to the lumber .company, and he was, accordingly, a necessary and indispensable party; and the court erred in removing the cause on the ground of diverse citizenship.

Judgment reversed.

All the Justices concur, except Simmons, O. J., absent.