156 Ga. 43 | Ga. | 1923
C. S. Colley and W. P. Arnold sued the Atlanta and West Point Bailroad Company, and made this case: C. S. Colley, on or about Sept. 22, 1920, purchased from Mrs. Frank Word
If this court has jurisdiction to decide this case, it has it under the provision of the constitutional amendment of 1916 (Acts 1916, p. 19), which confers on it jurisdiction "in all cases respecting titles to land,” This language is not new in our statutory and constitutional law; and this court has had occasion to consider and construe this language. In the constitution of 1861, there wasthis provision: “ The superior court shall have exclusive juris
In Bivins v. Bivins, 37 Ga. 346, this court said: “ A bill filed against a defendant to -require him to execute a title to land, upon the ground of fraudulent procurement of the title thereto in his own name, is not such a suit respecting titles to land as will give jurisdiction to the court in the county where the land lies, where the defendant resides in a different county.” In Taylor v. Cloud, 40 Ga. 288, this court decided that a bill filed, to set aside a fraudulent deed to land, and praying possession of the land, was not a case respecting the title to the land, which could be brought in the county where the land was located, the defendant residing in a different county. A bill to set aside and cancel a .deed is not such a suit respecting titles to land as must be brought in the county where the land lies. McArthur v. Matthewson, 67 Ga. 134; Saffold v. Scottish Am. Mortgage Co., 98 Ga. 785 (27 S. E. 208). In Powell v. Cheshire, 70 Ga. 357 (48 Am. E. 572), this court held: “ A bill in equity to enjoin a trespass upon realty by felling timber is not such a suit respecting the title to land as must be brought in the county where the land lies.”- A bill for specific performance of a contract of sale of land is not a suit respecting the'title to land. Lowe v. Mann, 74 Ga. 387. The defense of failure of consideration to an action upon promissory notes for the price of land held by defendant under bond for title from the plaintiff, on the ground that the plaintiff did not have and could not make a good title to the land, did not render the case one
In the above and similar cases the proceedings are not “ cases respecting titles to land,” “ although to investigate the question it was absolutely necessary to inquire into the validity of the title to land.” Clark v. Beall, 39 Ga. 533, 541. In Elkins v. Merritt, 146 Ga. 647 (92 S. E. 51), this court held that the language of the constitutional amendment of 1916, giving this court jurisdiction in “ all cases respecting titles to land,” being a repetition of the language employed in the constitution in fixing the venue of “ cases respecting titles to land,” in view of the decisions construing this language in the latter provision, “ should be construed as conferring jurisdiction upon this court to review cases from the superior courts where title to land was directly involved, not cases where it was only incidentally involved.” This case was followed in Frey v. Thompson, 147 Ga. 559 (94 S. E. 999), and Griffin v. Leggett, 153 Ga. 663 (112 S. E. 899). In the latter case this court again said: “ 'Under the constitution of this State, however, the-case must be one respecting title to land, and the title must be direcly involved.” In the case in hand title was not directly, but only incidentally, involved, It follows, under the above authorities, that it is not a case respecting title to land in the meaning of, of the constitution, and that this court is without jurisdiction to determine it. It is accordingly transferred to the Court of Appeals.