Opinion
13801.
JULY 8, 1941.
Ejectment. Before Judge Crow. Dougherty superior court. April 22, 1941.
Rosser Malone and Hugh Shackelford, for plaintiffs.
Bennet Peacock, for defendant.
This being a suit to recover land, and the plaintiffs showing no title, and the case not falling within any of the exceptions to the applicable rule that it is incumbent on the plaintiff to show title in order to prevail, it was not erroneous to direct the verdict for the defendant and to refuse a new trial.
No. 13801. JULY 8, 1941.
The plaintiffs as remaindermen sued for certain property devised under the will of Joseph Jefferson to Cornelius Jefferson, provided the latter died without issue. In a suit filed in Dougherty superior court by Forrest Pone, a minor, by her guardian, against Cornelius Jefferson individually and as executor of Joseph Jefferson, and against apparently all the then living descendants of Joseph Jefferson, the petitioner prayed that a receiver be appointed to administer the estate in equity. A receiver was appointed, the court clothing him with all the powers and authority of an executor under the will, and ordering him to take charge of the estate. Later the receiver petitioned the court, reciting that Cornelius Jefferson had absconded; that his whereabouts was unknown; that his interest in said estate consists of a life-interest in and to certain property; that "the said Cornelius Jefferson as executor aforesaid, and as defendant in the above-stated case, acted in a stubborn and litigious manner during the proceedings to adjust said estate, and refused to co-operate in getting the same finally and fairly adjusted, and was finally, on the 29th day of September, 1916, held in contempt of the court for failure to comply with the court's order in reference to making an accounting as executor for the funds that had been in his hands as such executor, but before he could be taken under said contempt proceedings he fled the county and has since then kept his whereabouts a secret," and that there remained unpaid in the administration of said estate certain items of expenses and costs which should be paid.
The petition of the receiver contained the following: "Petitioner shows that he has sold the life-estate of said Cornelius Jefferson in and to the two lots known as subdivision `B' lots 8 and 4 in the plat of real estate as recorded in clerk's office of Dougherty County, Georgia, subject to the court's approval and confirmation, to S. M. Thompson at and for the sum of $100, which petitioner alleges is a fair price for said interest, and probably the best offer that could be obtained by further efforts. Petitioner shows that the foregoing amounts are due from the portion of the estate which he now has in hand, to wit, taxes, costs of court, receiver's fees, attorneys, miscellaneous small items as expense in administering as receiver on said estate, detailed statement of which has not yet been rendered. Wherefore petitioner prays an order and decree of the court confirming the said sale of the said life-estate of Cornelius Jefferson, and authorizing the clerk to tax the cost of the entire case against the said Cornelius Jefferson and issue execution therefor, and that the court allow your petitioner reasonable compensation for his services as receiver in the premises, together with reasonable counsel fees which he has incurred in administering the estate and presenting this petition. Your petitioner further prays that said decree approve and order a conveyance to Major Jefferson of the portion of the real estate set apart as hereinbefore alleged, to satisfy the special bequest to said Major Jefferson under the will involved in the case."
The pertinent part of the order was as follows: "It is further ordered and decreed that the sale by the receiver of the interest of said Cornelius Jefferson in said estate for the sum of $400 to S. M. Thompson be and the same is hereby confirmed, and said receiver is hereby authorized to execute good and sufficient title to said property to the purchaser to said lots 8 and 4 in subdivision `B' as shown by plat of said estate recorded in clerk's office, Dougherty County, Georgia." Later the receiver filed a petition entitled in the same cause, reciting what was in the order above referred to, and praying as follows: "That under a previous order of this court said lot was decreed to be into Cornelius Jefferson, under the division had and made by this court, subject to the costs and other expenses which had been then or might thereafter be taxed as against said Cornelius Jefferson. That it is necessary, for the payment of taxes, court costs, and expenses of administration, that said property be sold by the receiver, and in this connection that an order be passed authorizing said receiver to convey the fee and complete title in said lot. Wherefore your petitioner prays an order of the court authorizing and directing him to sell said property either at public or private sale, subject to confirmation in vacation or in term time by the court, and further directing your receiver with reference to any surplus which might come into his hands from the sale of said property over and above what is necessary to finally wind up the estate." On that petition an order was issued as follows: "It is ordered, that the receiver W. H. Beckham be and he is hereby authorized and directed to sell the real estate described in said petition, either at public or private sale, after advertising the same in such manner as he may deem best; said sale to be subject to confirmation by the court either in vacation or in term, and the proceeds to be disposed of as shall be ordered by the court upon such confirmation. The trustee will sell the entire fee in said property free of lien."
Later the receiver, in the same cause, filed another petition to the court, reciting the foregoing orders, and that he had received an offer from Claude Payton for said property at private sale for $600. His petition contained the following: "Your petitioner shows that this offer represents a fair valuation of said land and more than the said land would bring at public sale, in his opinion, on account of present market values of lands of all kinds; and your petitioner as receiver recommends the confirmation of said sale by the receiver herein to the said Payton, and that your petitioner as receiver be authorized by this court to make to the said Claude Payton good and fee-simple title to the said described land free of all liens, by execution of a proper receiver's deed of the same to the said Claude Payton upon payment by the said Claude Payton of the sum of $600 in cash to the said W. H. Beckham as receiver." On that petition the following order was passed: "The foregoing petition read and considered. It appearing to the court that the offer of $600 for the said described land under conditions recited in the petition herein is a fair offer for said property and the said sale is legal, the sale of the same by the receiver to the said Claude Payton is hereby confirmed. It is ordered that the receiver, W. H. Beckham, be and is hereby authorized and directed, upon receipt within 30 days of $600 in cash from the said Claude Payton, to convey unto him the said Claude Payton in fee simple, free of all liens the land described herein, to wit: in East Albany, Dougherty County, Georgia, and more particularly described and shown in plat book 1, page 4, in the office of the clerk of the superior court. The receiver is further ordered to hold the proceeds for such disposition as shall be ordered by this court."
The plaintiffs sued Cudahy Packing Company for the property referred to in the foregoing orders. The judge directed a verdict for the defendant. A motion for new trial was overruled, and the plaintiffs excepted.
Joseph Jefferson, not the actor who won applause of thousands by his masterful impersonation of Washington Irving's character, Rip Van Winkle, but a person by the same name, though less known perhaps to fortune and to fame, died a resident of Dougherty County, Georgia. Matters connected with his will have been acted upon officially by every one — eight in all — who have occupied the office of judge of the superior courts of the Albany Circuit for the last quarter of a century, and longer. In the present record are orders entered by Judges Harrell, Wilson, Bell, Custer, Cobb, and Crow. No order by Judge Gardner here appears, but a judgment rendered by him construing a portion of this will was reviewed by us in Jefferson v. Bright, 189 Ga. 866 ( 8 S.E.2d 821), a little more than a year ago. Jefferson v. Pone, 144 Ga. 543 ( 87 S.E. 665), is another case involving the same will which Judge Cox decided on April 10, 1915. The last signature of Judge Crow appearing in the record is dated April 22, 1941. This is a so-called ejectment suit. The declaration contains some of the earmarks of that common-law action; resembles somewhat the pattern which the older lawyers used to refer to as the "Jack Jones" form for the recovery of real estate (Code of 1882, § 3389; Tuggle v. Wilkinson, 17 Ga. 90; Dugas v. Hammond, 130 Ga. 87, 88, 93-94 ( 60 S.E. 268); Georgia Bar Association Report for the year 1922, pp. 113 et seq.), and in other respects it bears the characteristic of a complaint for land under what is known as the Neel act, now embodied in our Code. These remarks are not to be taken as any criticism of the pleadings. Indeed, the record shows that a demurrer to the petition as amended was overruled, and, so far as appears, no exception was taken to such ruling. The foregoing observations are made solely for the reason that, as will presently be seen, we are here holding that the proposition of law on which we place our judgment is applicable and controlling, regardless of the form of the action, provided its object be the recovery of land; and therefore it becomes immaterial to definitely classify the action with which we are to deal.
Counsel for plaintiffs in error in their brief say: "There are only two questions involved in the case. They are (1) whether or not the court had the right to pass a fee-simple title when only a life-estate was allotted to Cornelius Jefferson under the will of his father, Joseph Jefferson; (2) whether the court had the authority to sell the portion of land allotted to Cornelius Jefferson to pay the costs of the court, attorney's fees, etc., in full, without calling upon the other devisees to contribute their pro rata share toward these costs." Almost their entire argument is devoted to a discussion of these two questions, and many authorities are marshaled for the purpose of supporting their contentions. On the other hand counsel for defendant in error, while disagreeing with opposite counsel on both issues, insist that neither or both of those questions are controlling, but that there are other and independent reasons why the verdict is the only correct one that could have been rendered, and hence that the judgment under review must in any event be affirmed. These reasons are argued by counsel, and authorities cited. It is needless to take up seriatim the several grounds of defense relied on. It is sufficient if there be one solid foundation on which the judgment can rest. The declaration is in paragraphs. There were no admissions in the answer which relieved the plaintiffs of the burden of proof, including that of showing title. They showed no title. There is no evidence to the effect that Joseph Jefferson, the plaintiffs' ancestor under whose will they claim, ever had title or was ever in possession, or that the plaintiffs themselves were ever in possession. Code § 33-101 is in the following language: "A plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of the defendant's title. Where both parties claim under a common grantor, it is not necessary to show title back of such common grantor." While the marginal annotations thereto indicate that it is a codification of the decisions of this court in Harrison v. Hatcher, 44 Ga. 638, and Hitch v. Robinson, 73 Ga. 140, the principle there codified is much older than the Code. The rule that a plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant's, has been applied to equity suits involving title to land ( McCrea v. Georgia Power Co., 187 Ga. 708, 709, 1 S.E.2d 664), to complaints for land ( Edwards v. Hunt, 163 Ga. 439, 136 S.E. 409; Vick v. Georgia Power Co., 178 Ga. 869 (3), 174 S.E. 713), as well as to common-law ejectment ( Stanford v. Mangin, 30 Ga. 355; Foster v. Stapler, 64 Ga. 766). There is no deed in the record into Cudahy Packing Company, and nothing to show that both plaintiffs and defendant claim under a common grantor. For aught that appears in the record, the judge may have placed his decision, that the plaintiffs were not entitled to recover, on the very ground on which we base our affirmance of his judgment. It was sufficient without more, and provides a firm foundation, and one as solid as that on which Stone Mountain rests. See Powell on Actions for Land, §§ 129, 130.
However, the defendant, not having introduced any evidence, was entitled, not to a directed verdict, but to a nonsuit. Zipperer v. Savannah, 128 Ga. 135 ( 57 S.E. 311); Atlantic Ice Coal Co. v. Decatur, 154 Ga. 882 ( 115 S.E. 912); Gowen v. New Orleans Naval Stores Co., 157 Ga. 107 ( 120 S.E. 776). Direction is given that plaintiffs in error, when the remittitur is made the judgment of the trial court, have leave to vacate the verdict and to substitute therefor a judgment of nonsuit in lieu of the judgment entered on the verdict. If this is not done, then this affirmance is to operate unconditionally.
Judgment affirmed, with direction. All the Justices concur.