132 Ga. 626 | Ga. | 1909
The exception is to the dismissal of the petition on demurrer. Eliminating immaterial verbiage, and stating the essential averments as alleged, the petition was as follows: The petition of Eden Georgia Kehr and Robert Edwin Kehr, by their next friend, shows the following cause of action against J. B. Eloyd and T. B. Floyd, doing business in the firm name of J. B. Floyd & Company, in Effingham county, Georgia. The plaintiffs are non-resident minors, and the only living heirs of Herman E. Kehr and Ella Kehr. On May 20, 1891, Herman E. Kehr made
The petition was rightly dismissed. Pretermitting a discussion or decision of the effect of a failure to allege the residence of the defendants, there were other potent reasons invoked by the demurrer why the petition should have been dismissed. The plaintiffs neither alleged title in themselves, nor title or possession in their grantor, or that the defendants claimed title under a common propositus with them. However, it is made clearly to appear that they have no immediate right to the possession of the land, unless the precedent life-estate of Mrs. Kehr or her grantees is forfeited for waste. Neither Mrs. Kehr nor her grantees are made parties; and it would be subversive of every fundamental principle of law to cancel and nullify their title, and forfeit their life-estate, without giving the original life-tenant or her grantees an opportunity to be heard in defense. Nor is there any allegation that Floyd & Company claim either as direct or remote grantees of Mrs. Kehr, or claim authority from her or her grantees to cut the timber, or that Floyd & Company’s acts are consequent upon the failure, either of herself or her grantees, to exercise prudence in the preservation of the estate in remainder. See Civil Code, §3090. Again, the plaintiffs certainly would not be entitled to have expunged from the records the deed of Mrs. Kehr to F. B. & S. S. Keller, without first making them parties to the proceeding to obtain this relief. Other reasons are advanced in support of the judgment of the court on demurrer, but we will forbear discussion of them, as those which we have stated are sufficient to uphold the dismissal of the petition. Judgment affirmed.