158 Ga. 471 | Ga. | 1924
A. G-. Rhodes filed an equitable petition against Mrs. Lillie Biggers as administratrix of the estate of Willis R. Biggers, Mrs. Lillie Biggers individually, S. T. Biggers, and W. R. Biggers, to establish a lost deed. The suit was filed February 9, 1915, returnable to the May term, 1915, of the superior court. On May 21, 1915, the defendants filed
1. The court erred in striking the amendment to the defendants’ answer, upon demurrer. The plaintiff by appropriate petition sought to have established a deed which he claims the ancestor of the defendants executed, conveying to him the property in dispute. The heirs denied that their ancestor had executed the deed as claimed by the petitioner. The issue made by the petition and the answer thereto by the heirs, while it did not directly involve the question of title, did relate to that subject, and the stricken amendment was not foreign thereto, but was germane. The original answer and the amendment together formed a consistent whole, insisting that the deed which the plaintiff sought to have established had not been executed, and that title to the land described in the deed was in the defendants. Thus the question of title was brought into the case by appropriate pleadings. When the question of title or no title in the plaintiff was made, the parties were entitled to a judgment that would settle the entire case. In the event the defendants established by evidence that their ancestor had never executed a deed to the land to the petitioner, then as heirs of the ancestor they were entitled to a decree declaring the title to be in them, and that they should recover the land. This was what the amendment sought, and it should not have been stricken.
2. The assignments of error here are upon the final judgment, and upon the judgment dismissing the amendment to the defendant’s answer. The erroneous ruling in dismissing the amendment affected also the judgment dismissing the entire case upon the plaintiff’s motion. Consequently, as it was error to strike the defendants’ answer, the judgment
Judgment reversed.