129 Ga. 498 | Ga. | 1907
Annie B. Davis brought complaint for land against Mark Hall and obtained a verdict, which was set aside in this court (Hall v. Davis, 122 Ga. 253). It appears, from the report of that case, that the real controversy between the parties related to the identity of the land included in a deed from the defendant, Hall, to one Mrs.' Brown, under whom the plaintiff claimed title. It appeared on the former trial that the defendant was permitted to testify, without objection, that he sold a certain parcel of land to Mrs. Brown, and that he and she went on the premises and he pointed out to her, as the western boundary, a divisional line previously run by him between his land and the land of the Southern Pine Company. Subsequently to the execution of the deed to Mrs. Brown, the Southern Pine Company had a survey made, and a divisional line run between its land and Hall’s land; which line was ninety-two feet west of the divisional line previously run by Hall, and upon which Mrs. Brown and those claiming under her had erected a fence. The land in controversy, which was included between the two divisional lines was never intended to jDass under the deed from Hall to Mrs. Brown. The court instructed the jury that the deed from Hall to Mrs. Brown included the premises in dispute, and that the plaintiff, whose mesne eon
The motion and the counter-motion involve two propositions. The first is whether Lott is an indispensable party to the writ of error. It appears from the record that Lott conveyed the land in controversy to the plaintiff in the court below by warranty deed. The plaintiff claims title under the deed from Hall to Mrs. Brown, and mesne conveyances from Hall’s grantee to herself. Hall is seeking to restrict the quantity of land conveyed by these several conveyances, by reforming his own and subsequent deeds so as to exclude therefrom the land in controversy. He can not defeat the plaintiff’s title by showing that it embraces land not intended to be conveyed, unless the deed under which she claims is also reformed. As this deed was made by Lott, he is a necessary party to a proceeding to reform it.
Lott being a necessary party for the relief prayed against him and the plaintiff in the court below, the next proposition is, can he be made, by amendment, a coplaintiff in error to the bill of exceptions? The general rule is that any party on the same side of the case may be added by amendment to the bill of exceptions as a coplaintiff in error. The test to be applied in determining whether one sought to be introduced by amendment could have been joined with the excepting party as a plaintiff in error is, were they on the same side of the controversy in the trial court?' Western U. Tel. Co. v. Griffith, 111 Ga. 551. Where several defendants are sued, and there are no cross-pleadings so as to make any of them plaintiffs claiming affirmative relief, the presumption is that their interest is as they are aligned in the record. Baker
Dismissed.