27 Ga. 40 | Ga. | 1859
By the Court.
delivering the opinion.
Was the judgment or decree sustaining the demurrer to the first bill, a bar to the second bill ? It is admitted, that it was, if the Court sustaining the demurrer, had jurisdiction of the first bill, and if the facts and the prayer of the first bill, are the same as those of the second.
First then, did the Court have jurisdiction ?
The plaintiff in error, by his counsel, insists, that the first bill was “a case” “respecting titles to land,” and that as the bill was not brought in the county in which the land lay, the Court had no jurisdiction of it, although, it was brought in the county in which, the defendant resided.
It is true, that one object of the bill, was, to compel the defendant, to convey to the complainant, an interest in the unsold lots of the town of Oglethorpe; but, it is equally true, that another, and probably a much greater object of 'it, was, to compel the defendant, to pay over to the complainant, his part of the profits, made by the defendant, from the sales of the sold lots of that town. And, in so far, as this last was. the object of the bill, the proper county for the bill, was the county of the defendant’s residence; and, in that county, it was brought. There was then, at least as much reason that the bill should be brought in the county in which it was
Besides, there is not the same reason why cases in equity “ respecting titles to land,” should be brought in the county where the land lies, that there is, why such cases .at common law should.
A Court of equity enforces its judgments, entirely, by acting on the person; not so a Court of common law; it can deliver possession of such lands only, as lie within the-county in which it sits.
For these reasons, then, and another which will appear in the sequel, we think, that the Court did have jurisdiction.
Were the facts and the prayer of the first bill, the same as those of the second ?
We think, that in substance, they were.
The contract on which, the first bill relies, is the very same as that on which, the second relies. It is true, that the second bill says, that the contract made a sub-partnership with one Hunter, as a third party to it; and, that the first bill does not say either of these things, but then it is also true, that that bill states the contract, and whether the contract amounted to a partnership or not, was a question of law. The contract was one, indeed, which, from its very nature, made the parties to it, sharers in losses as well as profits. And the failure in the first bill, to mention Hunter as a third party to the contract, is not sufficient to show, that it was not the same contract as that set up in the second bill.
The contract set up in the first bill, being thus, substantially the same as the contract set up in the second, we may say, that the facts of the two bills, were substantially the same.
Were the prayers of the two, the same.
The prayer of the first, was, for a conveyance to the complainant by the defendant, of the interest purchased by the
The prayer of the second bill, was, for a full account of the “sub-partnership f and, for general relief. This prayer though short, is fully as comprehensive as the prayer of the first bill, which merely went into particulars.
We think, then, that the facts and the prayers of the two hills, were in substance the same. Consequently, our conclusion is, that the judgment or decree in the first bill, was a bar to the second bill.
If the counsel for the plaintiff in error, are right, in this position, that the contract as stated in the second bill, makes a sub-partnership, and we are right in our position that this contract and that stated in the first hill, are substantially the same, then, their objection that the Court had no jurisdiction in the first bill, isjremoved, for land held by a partnership, is, they say, to be treated as personalty, and any suit about personalty, must be brought in the county in which, the defendant resides. This is the other reason why we think, that the Court deciding the first bill, had jurisdiction of the bill.
Judgment affirmed.