137 Ga. 710 | Ga. | 1912
In behalf of Wilson and others (plaintiffs in the trial court, defendants in error here), counsel contend that the facts alleged in the petition authorized the plaintiffs to maintain an action: (a) for removal of a cloud from title; (6) for injunction against interference with the enjoyment of their respective properties; (c) to perfect and complete the means by which the right, estate, and interest of the plaintiffs to their real property may be approved and secured, and to remove all obstacles to its enjoyment. We fail to see that the facts alleged would authorize a court of equity to afford any such relief, and conclude that the court erred in refusing to dismiss the petition on general demurrer. The plaintiffs assert no interest except such as is traceable to the trust deed, and do not allege that the defendants assert any except such as is founded on the same instrument. It is true, that, in addition to record title traceable to the trust deed, the plaintiffs assert in severalty titles by prescription by reason of possession under separate conveyances to them executed by the respective trustees, and other intermediate conveyances; but in order to show that prescription was operative against the defendants during the period of adverse possession, the terms of the trust -deed were relied upon as showing that the fee was always vested, in the one instance, in the trustee, or, in the other instance, in Mrs. Howell, subject to be divested by the happening of a subsequent event, and that in either event suit should have been instituted before the expiration of the prescriptive period had it been desired to question the effect of the conveyances by the trustees or the right of the plaintiffs to titles by prescription. The plaintiffs were in peaceable possession, and it was not alleged that the defendants had themselves entered or otherwise committed a trespass upon the property which would authorize the plaintiffs to sue either in ejectment or for any waste or other wrong to the property; but the object of the suit was to construe the trust deed in a particular way and to establish and declare the several titles of the plaintiffs, thereby concluding the defendants from setting up any claim to it in the future. It is not alleged that the defendants had ever done anything tending to disturb the possession or enjoyment of the property by the plaintiffs, but the complaint is that recently, while the plaintiff Wilson was negotiating a sale of part of the property purchased by him, the defendants raised certain questions as to the title held by Wilson,
The case of Miles v. Strong, 62 Conn. 95 (25 Atl. 459), was a bill to remove a cloud upon title The facts alleged were: Selah Strong by his will devised to Ernest Strong Miles, his grandson, certain real estate, subject to the provision: “The foregoing devises to the said Ernest Strong Miles are subject to the charges aforesaid, to him and his heirs forever, provided however that if he, the said Ernest Strong Miles, shall die before he attains his majority or without leaving lawful issue surviving him, and without having disposed of all the lands by this will devised to him, either by deed or by will, then, and in either of these events, it is my will that all said lands herein devised to the said Ernest Strong Miles, and not by him disposed of, shall descend to and be distributed among my heirs at law, and those who legally represent them.” The land was properly set out and distributed to him in 1882, and the estate fully administered and settled. The land distributed to Ernest Strong Miles was subject to the provisions of the will as set out above. In 1890, after he became twenty-one years old and after-the charges had ceased to exist, he conveyed to his father in trust for himself most of the land. Subsequently, in order to secure any
Clearly there were no sufficient allegations to authorize the court to assume jurisdiction for the purpose of declaring that the “questions raised” in the manner alleged constituted a cloud upon title, or to authorize the grant of injunction. But the plaintiffs contended further that equity will interpose for the purpose of construing the deed and settling the' question of title by decreeing the' fee to be vested in the plaintiffs. On the contrary, it is contended that equity will not interfere for such purpose, the defendants not being in possession, and not having made any effort to disturb that of the plaintiffs or instituted any legal proceedings to question the validity of plaintiffs’ title. In Georgia there is no statute expressly conferring equity jurisdiction in such cases, and in the absence of statute equity will not, as a general rule, assume jurisdiction to afford such relief under the conditions alleged. Cross v. De Valle, 1 Wall. 5-17 (17 L. ed. 515); May v. May, 167 U. S. 310 (17 Sup. Ct. 824, 42 L. ed. 179); Mansfield v. Mansfield, 203 Ill. 92 (67 N. E. 497); Torrey v. Torrey, 55 N. J. Eq. 410 (36 Atl. 1084); Frank v. Frank, 88 Ark. 1 (113 S. W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. R. 73); Hart v. Darter, 107 Va. 310 (58 S. E. 590, 15 L. R. A. (N. S.) 599); Heptinstall v. Newsome, 146 N. C. 503 (60 S. E. 416).
In the case of Miles v. Strong, supra, referring to the contentions of counsel, it was said that “their claim is that they are entitled to ask for the construction of this will for the purpose of settling a dispute about a legal title to land. . .We think this can not be done. . . Every dispute between parties relating to the legal title to real estate, arising under wills, deeds, or other written instruments of title, would furnish a pretext to obtain a construction of the instrument in a proceeding of this kind. We hav§ no statute, as in many States, governing this matter, and we
The assignment of error upon the refusal of the judge to dismiss the petition on general demurrer having presented the controlling question upon which the judgment is reversed, it is unnecessary to deal with the questions as to the misjoinder of parties, and other grounds of special demurrer, and the direction of a verdict.
Judgment reversed.