101 Ga. 634 | Ga. | 1897
The questions in this case arose upon the following state of facts.
Victoria V. Clayton, administratrix with the will annexed of H. D. Clayton, deceased, filed in the superior court of Pulaski county her equitable petition against James L. Stetson, for the recovery of certain lands in that county and the rental thereof, and for other relief. The petition alleged as follows: On April 11, 1878, James S. Leith, who resided in the town of Hawlcinsville, Pulaski county, Georgia, was the owner in fee of a certain lot of land in said county (describing it), and for the purpose of improving the same, borrowed from William C. Hamilton $7,793.94, and proceeded to erect thereon a large two-story brick building with four stores on the lower floor and a hotel above, using the sum so borrowed, together with a large sum of money obtained from other sources; and to secure such borrowed money, gave to Hamilton a warranty deed to such property. Hamilton died, leaving as his only heirs at law his widow Mary Ann Hamilton, and his daughter Elizabeth Hamilton. In the year 1881 Leith made arrangements with James
Attached to the petition and referred to therein as exhibits were copies of the deeds therein mentioned, the power of attorney from Leith to Stetson, and the additional agreement between Leith and Stetson. The power of attorney recited that it was a continuing and irrevocable power, not terminable at the death of the maker, and terminable only by and with the consent of said Stetson; and that a good and valuable consideration was paid therefor by Stetson to Leith. The other agreement between Leith and Stetson was dated August 1, 1881, and was in substance as stated in the petition, and further provided that said power of attorney should be irrevocable by Leith until the sum furnished by Stetson to take up the claim of the Hamilton heirs and all expenses incurred in the collection thereof, and all commissions mentioned in this agreement, were paid in full, leaving no claim whatever due Stetson, either on the loan, expenses or commissions, or for any debt contracted by Stetson for the improvement of said property or repairs thereon.
To this petition a demurrer was filed upon various grounds, among others, that the petition shows that the superior court • of Pulaski county has no jurisdiction to try said case, nor of the person of the defendant. Upon the filing of this demurrer, the plaintiff amended the petition by striking out all the prayers contained therein, except the prayer for the premises sued for and the rental thereof. The defendants then demurred anew to the declaration thus amended, upon the additional ground, that since amended the petition stands only as an action of ejectment for the premises in dispute and mesne profits, and should be dismissed for the reason that -it shows title out of J. S. Leith, the grantor of the plaintiff, prior to the grant or gift from said Leith to plaintiff’s intestate; upon the further ground, that the plaintiff does not offer to do equity by tendering to the defendant the amount of money due by said Leith to defendant. The court sustained the demurrer generally, and dismissed the declaration.
The suit was brought in the county where the land lies, but the defendant resided in another county. If the plaintiff, without resorting to the powers of the superior court as a court of equity and without invoking equitable relief, can, upon her legal title, recover, the suit is well brought in the county where the land lies; but if, in order to vest herself with a legal title upon which she can recover at law, it becomes necessary at first to assert an equity as against the person invested with the legal title, then we conclude that the action should have been brought in the county wherein the defendant resided.
The superior court, by par. 1, sec. 4, art. 6 (Civil Code, § 5842) of the constitution of this State, is invested with exclusive jurisdiction to try cases respecting titles to land, and as well equity causes. Par. 2 of the same section and article (Civil Code, § 5843) provides, that the General Assembly may confer upon the courts of common law all the powers heretofore exercised by courts of equity in this State. This has been done
When we come to consider these two sections together, we conclude that the equitable and common-law jurisdictions of the superior court are merged, and that such a court may, upon the trial of a given case, apply either equitable or common-law principles in determining the rights of the parties. If there were no further limitation upon the jurisdiction of the court with respect to the several classes of rights which are authorized to be adjudicated therein, mere matters of procedure and pleading could be accommodated to the circumstances of each particular case; but where, as in the present case, if the cause of action be an equitable one, it must be brought in the county of the defendant’s residence, or if the plaintiff relies only upon the assertion of a common-law right, it must be brought in the county where the land lies. The two sections of the constitution last above quoted operate as limitations upon the jurisdiction of the superior court, which are to be defined, in the one case, by the place of the residence of the defendant, and in the other, by the place of the situation of the land. According to the declaration in this case, the plaintiff showed that the legal title was in the defendant, who was in possession; and, therefore, this of itself was sufficient to defeat her right to recover. In order to reinvest herself with the legal title, it was absolutely indispensable that there should have been an accounting upon equitable principles between her and the defendant, and she seeks in this proceeding indirectly to bring about an accounting which the defendant can not be held to make elsewhere than in the county of his residence. If the defendant, against whom a perfect equity is sought to be enforced happens to reside in the county in
Judgment affirmed.