Jordan v. Faircloth, 27 Ga. 372

Jordan v. Faircloth

27 Ga. 372 | Ga. | 1859

By the Court.

Benning, J.

delivering the opinion.

The Court below overruled the motion to dismiss the bilL *376for want of equity. The first question, therefore, is, whether there was equity in the bill ?

The grounds of the motion, as urged here, were three.

1. That the title of the complainants, if they had any, was a title they might assert at law.

2. That what was relied on by the complainants’ as title, was no title, either at law or in equity, because it had once been asserted at law, and been adjudged there, to be no title.

3. That if it had ever been a title, it was now barred by the statute of limitations.

As to the first of these grounds :

[1.] The title of the complainants against the defendant, was, taking, as we must, the bill to be true, what is called, a complete equity. And it is true, that, according to the later decisions of this Court, a complete equity is sufficient to support an action at law — an ejectment. Goodson vs. Beacham, (24 Ga, 153,) is one of these decisions, and there are some others. But none of these decisions go so far as to say, that the remedy at law, on such a title, is complete and adequate. Nor is it, generally; for, in almost every case in which, the title is only equitable, the owner of the title, has the right to have, not only possession of the land, but a conveyance of the legal title. This conveyance he cannot obtain at law, but only in equity.

And, in the present case, the complainants if entitled to the land, are entitled to have a conveyance of it, made to them, by Jordan.

This first ground, then, we think, not good.

As to the second ground: .

[2.] It is true, that what is relied on in this bill for title was once relied on in an action at law, brought for the land by the complainants; but, it is not true,«that it was, in that action, passed upon, and adjudged to be no title. The main thing relied on in both suits, to make out the title of the plaintiffs, is, notice — notice of the title of the Faircloths, had by Jordan and the Tompkinses, when they purchased. But, *377in the suit at law, the question of this notice to them, was, expressly, excluded from the consideration of the jury. This appears of record. Of course, therefore, the title that depended on that notice, could not have been adjudicated by the Court and jury, in that suit.

As to the third ground :

[3.] The present suit in equity, was commenced within less than six months from the termination of the suit at law. The termination of that suit was, it is true, not by “nonsuit,” “discontinuance” or “dismissal.” And therefore the case does not fall within the very letter of the Act of 1847. Cobb, 569. The case terminated by a verdict for Jordan, but, then, the reason of that, was, that the Court excluded from the jury, the consideration of the equitable title of the Faircloths, and excluded all evidence of that title. The Court having done this, the case was left in a condition in which, Jordan was entitled to a nonsuit, and to no more than a nonsuit. A Court of Equity, therefore, which, if possible goes by substance and not by form, will regard the verdict as amounting, in reference to the Act of 1847, to no more than a nonsuit; and, consequently, will regard the renewal of the suit within six months from the verdict, as a substantial compliance with that Act.

So, wo think, that there was no validity in this the third and last ground. And thus we think that none of these grounds were sufficient to show that there was no equity in the bill. And we know of none ourselves that is sufficient to show that. Therefore we see no error in the judgment overruling the motion.

The next question is, as to the refusal of the Court to let the bill be taken as confessed in the parts which, Jordan, on exceptions to his answer, was required to answer over.

[4.] The order to answer over, did not set a time within which, the answer was to be filed. We think, therefore, that Jordan had until the next Term within which, to answer. Before the next Term, he died. Jordan, then, never having *378been in contempt, there could be no ground for taking the bill as confessed by him.

We think, then, that the Court was also right, on this question.

The next and last question is, as to the sufficiency of the exceptions to the answer of the administrator of Jordan.

These exceptions are not to be found in the record. So we cannot decide the question.

Judgment affirmed.

McDonald J. absent.