103 Ga. 738 | Ga. | 1898
In November, 1884, W. D. Hix, of Haber-sham county, conveyed to his wife, Mary E. Hix, a tract of land situated in Banks county. His deed to her was not, however, recorded until September, 1893. In November, 1891, Hix conveyed the same land to M. C. & J. F. Kiser & Co. to secure a debt due to them. Subsequently, Bates, Kingsbery & Co. filed an equitable petition in the superior court of Haber-sham county against Hix and his wife and Kiser & Co., alleging, in substance, that Hix was indebted to them upon certain judgments; that Mrs. Hix, fraudulently, and in pursuance
In Royston v. Royston, 21 Ga. 161, which was a case incidentally involving title to land, it was held that “the provision in the State constitution, requiring the title to lands to be tried in the county where they lie,” did not apply. Judge Lumpkin said (page 174), “it is true to some extent, that the title is involved; still it is incidental only to the main controversy, and the constitution manifestly refers to cases brought for the purpose of trying the title;” The contest in the case between Bates, Kingsbery & Co. and Hix and wife et al., did, certainly, put in issue the disputed question whether her claim of title was bona fide, or fraudulent; but it was merely incidental to the main controversy, which was whether or not, under the facts alleged, and upon the equitable grounds set
This court, in Smith v. Bryan, 34 Ga. 53, decided that a bill in equity to set aside a sale of land and cancel a deed on the ground of fraud was not a case respecting titles to land, within the meaning of the constitution; and consequently that the superior court of the county in which the land was situated had no jurisdiction if the defendant resided in a different county. Certainly that case was one in which, in a sense, the ownership of the land was involved; and yet the court reached the conclusion just stated, Jenkins, J., remarking (page 62) that cases respecting titles to land were “cases in which the plaintiff asserts his title to the land in question, and depends for a recovery upon his maintenance of it; or to supply a link in the chain, wanting by reason of accident or other cause.” To the same effect, see Bivins v. Bivins, 37 Ga. 346.
In Eagle & Phenix Manufacturing Co. v. West, 61 Ga. 120, it was, upon the authority of the two cases last cited, held that the superior court of the county wherein some of the defendants resided against whom substantial relief was prayed had jurisdiction of the bill, though the object of it was to set aside the sale of stock in a manufacturing company, located in another county, which stock, under the code then of force, was realty. Again, in Fulgham v. Pate, 77 Ga. 454, it was held that as equity cases are to be tried in the county wherein a defendant against whom substantial relief is prayed resides, a bill filed in that county was not demurrable for want of jurisdiction, on the ground that land lying in another county was involved in the litigation. See, also, the recent case of Clayton v. Stetson, 101 Ga. 634, in which a very similar ruling was made. In that case Atkinson, J., in discussing the two paragraphs of the constitution, one providing that equity cases must be brought in the county in which a defendant resides against whom substan
The equitable petition was therefore properly brought in Habersham county, that being the county of the residence of the two defendants against whom substantial relief was prayed, and Mrs. Hix is bound by the judgment therein rendered.
Judgment affirmed.