30 S.E.2d 181 | Ga. | 1944
1. Where, in a suit by heirs at law to cancel a deed, the petition alleges that there is an administrator, but does not allege the assent of the administrator for the heirs to bring the suit, and does not charge fraud or collusion on the part of the administrator, the petition sets forth no right of action.
2. The allegations in the petition, which seek a cancellation of the deed as being a cloud on the plaintiffs' title to an undivided two-sevenths interest in the land, are not sufficient to constitute a cause of action as a proceeding quia timet under the Code, §§ 37-1407 et seq.
2. Neither do the allegations in the petition that this deed is a cloud upon the title of the plaintiffs' two-sevenths interest in the land make the petition good as a proceeding quia timet, under the Code, §§ 37-1407 et seq. In this regard the petition alleges that "to permit the said deed to remain of record would be a fraud upon your petitioners, and the said deed is a cloud upon petitioners' title to said lands;" and also, "petitioners show that the said deed is a cloud upon their title." The petition states that Hood Clark was "the owner of an undivided four-sevenths interest in the said described land." A copy of the deed is not attached to the petition, but it is alleged that the defendant, "W. A. Woody, had placed upon the deed records of Lumpkin County, . . a deed . . purporting to have been signed by the said Hood Clark and purporting to convey" all of the above described lands to Mae Woody. Construed most strongly against the pleader, the petition does not allege that the deed purported to convey a complete title to a full interest in the tract. If Hood Clark owned a four-sevenths interest in the land, and conveyed his "interest in the land," such a deed could, under no circumstances, be a cloud upon the title to the two-sevenths interest of the petitioners. Latham v. Inman,
Judgment affirmed. All the Justices concur. *686