Opinion
32766.
DECIDED JANUARY 6, 1950. REHEARING DENIED FEBRUARY 2, 1950.
Complaint; from Chattooga Superior Court — Judge Nichols. September 12, 1949. (Application to Supreme Court for certiorari.)
Rosser McClure, Maddox Maddox, for plaintiffs.
Matthews, Owens Maddox, for defendant.
Where remaindermen sue a life tenant and seek a forfeiture of the life estate because of waste in the cutting and selling of timber from the freehold, and where the action is dismissed solely on a special demurrer because the petition did not show on its face whether or not all or part of the timber cutting complained of was barred by the statute of limitations, such action and final judgment is not a bar to a second cause of action, based on the same facts, in which the remaindermen seek to recover damages for the waste complained of.
DECIDED JANUARY 6, 1950. REHEARING DENIED FEBRUARY 2, 1950.
The plaintiffs, remaindermen of a life estate, sued the holder of the life estate for damages for alleged acts of waste to the corpus of the estate. The will devising the life estate was made an exhibit and that portion creating the life estate was as follows: "I will, devise and bequeath unto my wife, Mary M. Wright, all my property of every kind, real estate, personality, notes, accounts, choses in action and inheritances, during her natural life, with the right to use the rents and profits therefrom as she may desire without let or hindrance. If it should ever become necessary, I desire that she may encroach upon the corpus to make her comfortable, this bequest to be effective so long as she remains a widow. Should she remarry, I will, devise and bequeath unto her my undivided 1/4 interest to what is known as the Kendrick place, the same being fully described in a deed from W. S. Kendrick to me and Mary M. Wright, this to go to her in fee simple in the event of her marriage, but, in such event, she shall have no other interest in my estate, and the remainder shall pass to others as set forth hereinafter." After alleging their interests in the estate the plaintiffs further alleged: that the defendant took entire possession and control of the lands to the exclusion of the plaintiffs and with utter and complete disregard of their rights and interests and with complete lack of ordinary care of a prudent person for the preservation and protection of the lands, sold and cut timber growing and standing on the lands, causing permanent injury to such land and to the plaintiffs; that the defendant paid no part of the proceeds of the timber and wood so cut, removed and sold to the plaintiffs; that such was done without the plaintiffs' consent and against their interest and to their injury; that the timber was cut and sold during the year 1944 and subsequently thereto; that such acts of the defendant tended to and did decrease the value of the lands and that such acts were wilful and constituted lack of ordinary care for its preservation and protection; that the value of the lands on account of the cutting and removing of the timber was decreased in the sum of $2775; that it was not necessary that the defendant so encroach on the corpus of the estate to make her comfortable; that at all times she had sufficient income from the estate to make her comfortable without so encroaching upon the estate; that there was no need or necessity to cut the timber and that it was not used for repair, improvements or otherwise as to the lands but was sold for money, which was entirely appropriated by the defendant to the exclusion of the plaintiffs; that such acts of the defendant constituted and was waste on the part of the defendant. The prayer was for $2775 damages. To the petition the defendant filed a plea in bar alleging: that on August 21, 1944 the plaintiffs brought suit against the defendant seeking a forfeiture of the defendant's life tenancy in the lands therein described for the reason therein set forth; that the plaintiffs filed an amendment to said suit; that the defendant filed her demurrers to the original petition and to the petition as amended; that said demurrers were overruled and that the defendant filed her bill of exceptions to the Supreme Court of Georgia; that the order overruling said demurrers was reversed by the Supreme Court as reported in 200 Ga. 413; that upon receiving the remittitur in said case the trial court entered an order sustaining the demurrers and dismissing the petition; that such order brought the case to a final determination in favor of the defendant; that under the law the plaintiffs had two different and coexisting modes of procedure and relief against the defendant and that by filing the suit seeking a forfeiture of the life estate the plaintiffs had made an election as to the remedy to pursue and had pursued such remedy and were estopped from asserting a remedy based on any damages; that at the time of the filing of the suit for forfeiture on August 21, 1944, the damage complained of in the present suit for damages had already been done and that such damage was known to the plaintiffs, and that if they had any right on account of such alleged damage, it should have been included in the suit for forfeiture, and that the plaintiffs were estopped from bringing the present action.
For a clear understanding of the present case it should be stated that the pleading and the proceedings in the prior suit, the suit for forfeiture of the life estate, show: that the amended petition alleged acts of commission as constituting waste, in that the defendant life tenant had sold and removed about two million board feet of timber from the lands in which they had a remainder estate under the will which was annexed to the petition; that from one tract a certain amount of timber had been removed in 1935 and 1939, a certain amount from another tract in 1935 and 1943, from another tract in 1935, 1939 and 1940, a certain amount from another tract in 1936, from another tract in 1934, 1935 and 1938, and a certain amount from still another tract in 1935 and 1939; but the petition failed to indicate, in every instance but one, what portion of the amount from each tract had been removed in each particular year. The amended petition further alleged acts of omissive waste such as allowing certain farm houses, buildings and fences on the different tracts to fall into disrepair and to rot, and in failing to cultivate certain lands in the different tracts and allowing the same to be grown up with underbrush and saplings and rendered unfit for cultivation. The defendant demurred to the petition as amended as to one of the tracts, in that under the provisions of the will the plaintiffs had a remainder interest subject to being divested upon remarriage of the life tenant. The only other special ground insisted upon in the Supreme Court by the defendant, insofar as the timber was concerned, was that the petition showed that any right that may have arisen in the plaintiffs by reason of the acts of cutting the timber was barred by the statute of limitations, on which grounds the defendant had filed a special demurrer. The trial court overruled the defendant's demurrers and she excepted. On review of the case by the Supreme Court of Georgia, 200 Ga. 413, the lower court's rulings on the defendant's demurrers were reversed. In so ruling the Supreme Court held: that the plaintiffs had no right of action for forfeiture as to that tract of land that would vest in the defendant in fee simple upon her remarriage in that the plaintiffs' interest was contingent; that the demurrer setting up the statute of limitations was good and should have been sustained; that under the will the defendant under certain circumstances could encroach upon the corpus of the estate and that the plaintiffs had not alleged, as they were required to do, that it was unnecessary for the defendant to so encroach; that the alleged acts of omission were not sufficient to authorize a forfeiture of the life-tenant's estate. Upon receipt of the remittitur from the Supreme Court the trial court entered an order sustaining the defendant's demurrer and dismissing the petition. The present action concerns all the tracts of land involved in the prior suit except the tract that would vest in the original defendant in fee simple upon her remarriage, the original defendant having died and her executrix having been made a party defendant.
To the defendant's plea in bar the plaintiffs filed a demurrer which was overruled, and the plaintiffs excepted pendente lite. On the trial of the plea in bar the court directed the jury to return a verdict in favor of such plea. The trial court dismissed the plaintiff's petition and they excepted.
It is first necessary to ascertain the import of the decision and judgment of the Supreme Court, and of the judgment of the trial court in their judgments that the petition in the cause, the judgment in which is pleaded in bar to the present action, as finally amended, was subject to demurrer and dismissal. Insofar as the subjects involved in the present action are concerned, the first action was held to be subject to demurrer for three reasons. Wright v. Conner, 200 Ga. 413 ( 37 S.E.2d 353). Before the remittitur in the case above was made the judgment of the trial court the plaintiffs amended the petition and perfected it in every particular as to the acts of waste involved in the instant case, except that the amendment did not correct the defect held to exist in the petition as originally filed as to the allegations as to when the timber was cut and how much in each year. Upon the filing of the amendments the trial court sustained the demurrers and dismissed the action. As to the waste alleged in the instant case, the original petition was held in the first appeal to be good as against a general demurrer with the exception that it was held that the petition should have alleged that encroachment on the corpus was not necessary for the comfort of the life tenant. So when the petition was amended to include the allegation next above, it was no longer subject to general demurrer. The original petition was, however, held to be subject to special demurrer because it could not be ascertained, except in one instance, what amount of timber was cut from each tract in each year. Whether the Supreme Court was right or wrong in going to this extent in ruling that the petition was subject to the special demurrer that, "under the allegations as to the cutting of timber from the various tracts of land, it affirmatively appears that any right of action which plaintiffs might have had by reason of said allegations are barred by the statute of limitations, and/or laches on the part of the plaintiffs . . for the reason that any rights are barred . . ," since the petition did not show that all such cutting was barred, the court so held in the first appeal and in the second appeal ruled that such ruling was the law of the case. Conner v. Wright, 201 Ga. 753 ( 41 S.E.2d 158). Accordingly, it will readily be seen from the two above opinions by the Supreme Court in the two appeals of the case mentioned that the only defect in the petition in the original case as finally amended, insofar as waste by cutting timber was concerned, was that which could only be reached by special demurrer, to wit, that it did not show the dates on which timber was cut from the various tracts; in other words, the petition did not reveal whether the acts of waste were or were not barred by the statute of limitations. Hence, the petition in the first case was dismissed on special demurrer so far as the ground of cutting timber was involved, and not on the merits of the case.
1. The present remedies for waste are damages or action to declare a forfeiture. Parker v. Chambliss, 12 Ga. 235; Woodward v. Gates, 38 Ga. 205; Code § 85-604; Wright v. Conner, supra. We do not agree with counsel that the question to be decided is whether the plaintiffs are estopped to bring the present action because they elected an inconsistent remedy by filing the first action. We do not think that two remedies provided for one set of facts are inconsistent, whatever the remedies are. The test is not whether the remedies themselves are inconsistent, but whether a certain state of facts relied on as a basis of a certain remedy is inconsistent with another and different state of facts relied on as the basis of another remedy. Peterson v. Lott, 200 Ga. 390 ( 37 S.E.2d 358). Two or more actions based on identical facts are not inconsistent even if the remedies are inconsistent and each exclusive.
2. The only other question in this case is whether the adjudication against the remaindermen on the one point, that the petition did not show on its face whether all of the timber cutting or part of it was barred by the statute, precludes the instant action. "It is not essential to the plaintiff's cause of action that it appear affirmatively from the petition that it is not barred by the statute of limitations." Felton v. State Highway Board, 47 Ga. App. 615 ( 171 S.E. 198); Stringer v. Stringer, 93 Ga. 320 (2) ( 20 S.E. 242); Chatham Finance Co. v. Eitel, 66 Ga. App. 643 ( 19 S.E.2d 54); Lee v. Holman, 184 Ga. 694 ( 193 S.E. 68); Sammons v. Nabers, 186 Ga. 161 ( 197 S.E. 284); Consolidated Distributors Inc. v. Atlanta, 193 Ga. 853 ( 20 S.E.2d 421). We have held that there was no election between inconsistent remedies, and it follows that the mere filing of the first suit did not bar the second. Code § 110-503 provides: "A former recovery on grounds purely technical, and where the merits were not and could not have been in question, shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case shall have been adjudicated." The dismissal of a petition on special demurrer not extending to the existence of the alleged cause of action is not a bar to a second suit based on the same cause of action. Kennedy v. Ayers, 166 Ga. 206 ( 142 S.E. 859). Under the authorities cited, the first suit was not dismissed on its merits, the second suit was on the same cause of action as the first, and the judgment in the first action did not bar the present action.
What is said above applies if the timber cutting referred to in the first case includes that in the second. If the cutting involved in the instant suit was not involved in the first, and includes only timber cut after the first action was filed, then of course the result would be the same because the instant action would not be barred, because the cause of action would not have arisen until after the first was filed.
The court erred in overruling the demurrer to the plea in bar and in dismissing the action.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.
ON MOTION FOR REHEARING.
Defendant in error contends that under the fifth headnote of the opinion in Wright v. Conner, 200 Ga. 413, the court held that the petition in that case was subject to general demurrer. We have not overlooked or misconstrued that headnote. It refers to acts of omission only and did not refer to positive acts of waste, such as timber cutting. The petition was perfected insofar as positive acts of waste were involved, and when this was done and when the other corrections were made, the petition was no longer subject to general demurrer.
Rehearing denied.