Reeves v. Tarnok , 161 Ga. 838 ( 1926 )

Hines, J.

1. Under the allegations of the petition the plaintiff fails to show legal title, or such a perfect equity, accompanied with possession in herself, as will enable her to recover at law the premises in dispute. The petition therefore does not make a ease which entitles her to recover upon the theory that her action is a complaint for the recovery of land. Vanduzer v. Christian, 30 Ga. 336; Floyd v. Floyd, 97 Ga. 124 (24 S. E. 451); Ogden v. Dodge County, 97 Ga. 461 (25 S. E. 321); Holt v. Anderson, 98 Ga. 220, 224 (25 S. E. 496); Ellis v. Dasher, 101 Ga. 5 (29 S. E. 268).

2. Treated as a petition for specific performance, the relief sought was only such as operates against the person; and the court was without jurisdiction to render a decree granting it, based upon mere constructive service. Hamil v. Flowers, 133 Ga. 216 (65 S. E. 961); Bank of Floral City v. Warnock, 144 Ga. 117 (86 S. E. 249).

3. Treated as a proceeding in equity to impress upon the premises in dispute a trust in favor of the petitioner and to cancel the deed from Mrs. Ellis to Mrs. Tarnok as trustee, the petition was properly dismissed upon special demurrer because the personal representative of Mrs. Ellis was not made a party. Pierce v. Middle Ga. Land Co., 131 Ga. 99 (61 S. E. 1114); Biggs v. Silvey, 140 Ga. 762 (79 S. E. 857); Gibbs v. Harrelson, 147 Ga. 404 (94 S. E. 235); Brown v. Wilcox, 147 Ga. 546 (94 S. E. 993); Fordham v. Duggan, 147 Ga. 610 (95 S. E. 3); A., B. & A. Ry. Co. v. Smith, 148 Ga. 282 (96 S. E. 562). In Kent v. Davis, 89 Ga. 151 (15 S. E. 457), Eagan v. Conway, 115 Ga. 130 (41 S. E. 493), Belt v. Lazenby, 126 Ga. 767 (56 S. E. 81), Pierce v. Middle Ga. Land Co., supra, and Ansley v. Ansley, 154 Ga. 357 (114 S. E. 182), the sole heirs at law of the intestate were parties. In Ellesworth v. McCoy, 95 Ga. 44 (22 S. E. 39), the action was against two of the three heirs of the grantee in the deed sought to be cancelled, the third heir being a non-resident, and the prayer was to cancel only the interests of the two heirs in the land involved, who were parties to the proceeding. In Gordon v. Spellman, 145 Ga. 682 (89 S. E. 749, Ann. Cas. 1918A, 852), the executor was a party.

Nos. 4836, 4837. February 16, 1926.

4. Applying the above principles, the court did not err in dismissing the petition.

Judgment affirmed on main bill of exceptions; cross-bill of exceptions dismissed.

All the Justices concur. Walter DeFore and James 0. Estes, for plaintiff. Hall, Grice & Bloch, for defendants.