Deas v. Sammons

126 Ga. 431 | Ga. | 1906

Cobb, P. J.

(After stating the foregoing facts.)

When the common-law form of ejectment is adopted, the plaintiff' may lay as many demises as he pleases; and if he show title under any one of them, he may recover. He may also add new demises by way of amendment at any time when it is necessary to maintain his suit. When the plaintiff does not adopt the common-law form of ejectment, he is required to attach to his petition an abstract of the title relied on. This abstract is treated, for many purposes, as containing what would be the demises under the common-law form. ^ It may be amended by adding different and other muniments of title under which the plaintiff claims. Willis v. Meadors, 64 Ga. 721. The general rule is that there can be no recovery unless the plaintiff has a complete cause of action at the time the suit is filed. A cause of action accruing pending the suit will not entitle the plaintiff to recover. Baker v. Tillman, 84 Ga. 402; Wadley v. Jones, 55 Ga. 209; Gentry v. Walker, 101 Ga. 123; Harris v. Moss, 112 Ga. 95 (3). This rule is applicable both 'to the common-law form of ejectment and the action to recover land authorized by the code.' The English Court of Kings Bench would not suffer a demise to be laid subsequent to the day of the delivery of the declaration, on the ground that this would be to give to the lessor of the plaintiff a right of action which did not 'subsist at the time of the commencement of the action. Tyler on Ejectment, 402. The same rule has been announced in this country in numerous cases. 15 Cyc. 29. In Johnstone v. Jones, 66 U. S. 224, Mr. Justice Swayne remarked, “In ejectment the plaintiff must recover, if at all, upon the state of his title as it subsisted at the commencement of his suit. Evidence of any after-acquired title is wholly inadmissible.” And the same Justice, in McCool v. Smith, 66 U. S. 470, said, “The rule of the common law is inflexible that a party can recover only upon a title which subsisted in him at the time of the commencement of the suit.”

Judgment reversed.

All the Justices concur, except Fish, Q. J., absent.