Opinion
19265.
ARGUED FEBRUARY 14, 1956.
DECIDED APRIL 9, 1956.
Declaratory judgment; title to land. Before Judge McGehee. Spalding Superior Court. December 28, 1955.
S. B. Wallace, for plaintiff in error.
W. H. Beck, Jr., Beck, Goddard Smalley, contra.
The judgment of the court below denying the motion to set aside the judgment in the instant case was not error.
ARGUED FEBRUARY 14, 1956 — DECIDED APRIL 9, 1956.
The plaintiff in error brought a declaratory-judgment action, seeking to determine his right in and to certain described real estate. The defendant in error filed her answer, in which she alleged that the plaintiff in error had no interest in the land and was not an interested party, because of a certain instrument executed by the father of the plaintiff in error to named persons in which he conveyed his interest in the land in question. The petition was amended, and the plaintiff in error filed general and special demurrers to the answer.
It was stipulated by the parties that the court should determine all issues of law and fact without the intervention of a jury, and further stipulated that the sole issue presented for determination was the validity of the instrument above referred to, and that, if the court should find that the said instrument was a valid release or conveyance of the interest of R. S. Ison in the estate of F. M. Ison, grandfather of the plaintiff, then in that event the plaintiff could not recover in this case.
The judge of the court below found that the instrument was a valid release or conveyance of the interest of R. S. Ison in the estate of F. M. Ison, and judgment was rendered in favor of the defendant. Thereupon, the plaintiff in error filed a motion to set aside the judgment. The motion was denied. The exception here is to that judgment.
1. The first ground of the motion to set aside the judgment of the court below is that judgment was rendered before the demurrers were disposed of, and said demurrers are still undisposed of. There is no merit in this contention. Under the stipulation entered into between the parties, the only question for determination was whether or not a certain instrument was a valid release or conveyance of the interest of R. S. Ison in the estate of F. M. Ison. There was no reservation with reference to the demurrers. The court below decided the question which was stipulated by the parties to be the sole question for determination, and no other question was before the court.
2. It is next contended that the judgment of the court below should be set aside because "the written agreement as provided by law was not entered into before a trial before the court." It is not clear just what "written agreement as provided by law" is referred to. In his brief, the plaintiff in error refers to the written agreement provided in Code (Ann.) § 110-1103. However, an examination of that section will reveal no reference to any written agreement. Code (Ann.) § 110-1104 does refer to a written agreement, which is required if the proceeding is to be tried earlier than twenty days after service. This provision is not applicable to the instant case because the record shows that the proceeding was tried more than twenty days after service. There is no merit in this contention.
3. The last ground of the motion to set aside the judgment contends that no evidence was submitted to the court upon which to base the judgment rendered. The record in this case discloses that the only evidence introduced or sought to be introduced was the deed itself. The deed reads as follows: "Know all men hereby that I, R. S. Ison, do acknowledge receipt of and payment by W. L. Ison, M. E. Ison, S. S. Ison, K. L. Ison, and R. Z. Ison, said payment being made by R. Z. Ison as evidenced by a certain deed to him this day executed by me and my interest therein being surrendered and sold to him — of my interest in full in the estate of my father, F. M. Ison, late of said County, deceased, and unto them and unto the said R. Z. Ison as is by said deed conveyed. I Quit Claim and surrender all other and any interest right and title I may now have in and to any part of my said father's estate."
Under the rulings made in Allen v. Allen, 146 Ga. 204 ( 91 S.E. 22), the deed above set out is sufficient to either convey whatever interest the maker had in the estate of his father or to estop the maker and those who are privies in estate with the maker to deny that the interest was conveyed. There is no merit in this contention.
It follows from what has been said above, the judgment of the court below denying the motion to set aside the judgment was not error.
Judgment affirmed. All the Justices concur.