Opinion
16931.
MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
Complaint for land. Before Judge Humphrey. Candler Superior Court. October 1, 1949.
Alfred Herrington and Hugh R. Kimbrough, for plaintiff.
Anderson Trapnell, for defendant.
The prior judgment establishing a dividing line, in a processioning proceeding in which an adjoining landowner filed a protest, was res judicata in the present ejectment suit between coterminous landowners, both of whom derived title from a common grantor, where the essential question, in determining title to the land in dispute, was not one of title but one of boundary and, accordingly, the trial court did not err in directing a verdict in favor of the defendant.
No. 16931. MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
This is an ejectment suit in statutory form by Mrs. L. H. (Mary Jane) Edenfield against H. V. Lanier. The suit was field in Dawson Superior Court on January 4, 1949, to recover 25 acres of land. In the petition it was alleged that the plaintiff and the defendant claim title to their respective land under separate chains of title, each of which originated from a common source, to wit, James Warren. One ended in a deed to 100 acres in favor of Mrs. Edenfield, and the other ended in a deed to 246 acres in favor of Lanier. The plaintiff and the defendant are coterminous landowners, and it is not alleged that either party is claiming any land beyond the boundaries stated in the respective deeds.
To this suit Lanier filed a plea of res judicata, in which he averred that a judgment had been rendered on September 29, 1947, in the superior court in favor of Lanier on a processioning proceeding, wherein Mrs. Edenfield had filed a protest, and in which the same issues were involved and between the same parties as in the present case. This judgment was affirmed by the Court of Appeals. Edenfield v. Lanier, 77 Ga. App. 535 ( 48 S.E.2d 777).
On the trial of the ejectment suit, the plaintiff admitted in open court: (1) that all facts alleged in the defendant's plea of res judicata are true; and (2) that the lands in dispute in this action lie between the lands of the defendant and the line established by the processioners.
The court directed a verdict for the defendant, which ruling is assigned as error in a direct bill of exceptions.
A controlling question is whether or not the judgment in the processioning proceeding is a bar to the ejectment suit as a matter of law. A verdict and judgment under Code § 85-1601 et seq., in a processioning proceeding, in which an adjoining landowner files a protest, is conclusive on the parties and their privies in title. Howland v. Brown, 92 Ga. 513 ( 17 S.E. 806); Martin v. Pattillo, 126 Ga. 436 (1) ( 55 S.E. 240); Stovall v. Caverly, 139 Ga. 243 (2) ( 77 S.E. 29); Caverly v. Stovall, 143 Ga. 705 (2) ( 85 S.E. 844); Chambers v. Netherland, 145 Ga. 52 (1-a) ( 88 S.E. 545).
However, the Code, § 110-501, declares: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside"; and counsel for the plaintiff in error insist that the present ejectment suit is for a different cause of action, and therefore the judgment in the processioning proceeding, which adjudicated the question as to boundary only ( Byrd v. McLucas, 194 Ga. 40, 20 S.E.2d 597; Edenfield v. Lanier, 203 Ga. 348, 46 S.E.2d 582), is not res judicata.
Ordinarily, where an action in ejectment is between coterminous landowners, both of whom derive title from a common grantor, and where it appears that the only question is whether the lands sued for lie within the boundaries of the plaintiff's land or within the boundaries of the adjacent land of the defendant, the essential question, in determining title to the land in dispute, is one of boundary. Barfield v. Birrick, 151 Ga. 618 (1) ( 108 S.E. 43); Peeples v. Rudulph, 153 Ga. 17 (4) ( 111 S.E. 548); Smith v. Bailey, 183 Ga. 869 (2) ( 189 S.E. 905); Crawford v. Cook, 204 Ga. 654 (1) ( 51 S.E.2d 422).
Applying the above principles of law to the facts of the present ejectment suit, where the only conflict under the allegations of the petition was whether the lands sued for lie within the boundaries of the plaintiff's land or within the boundaries of the adjacent land of the defendant, the essential question, in determining title to the land in dispute in the ejectment suit involved boundary only. Accordingly, the judgment in the processioning proceeding was res judicata; and under the admission of the plaintiff that the lands in dispute lie between lands of the defendant and the line established by the processioners, the trial court did not err in directing a verdict in favor of the defendant.
Judgment affirmed. All the Justices concur.