17 Ga. App. 527 | Ga. Ct. App. | 1916
This suit was brought to recover a specified sum of money alleged to be the undivided interest of the plaintiffs in certain sums of money collected at various times by the testatrix of the defendant as the proceeds of certain sales of property (timber and turpentine rights) in which the plaintiffs alleged they were vested with title. It is alleged in the petition, that the mother of the plaintiffs, now deceased, was one of the legatees under the will of James W. Roberts; that by the terms of this instrument the defendant’s testatrix had only a life-estate in certain lands, the fee in remainder being vested in the mother of the plaintiffs, jointly with other named persons; that the defendant’s testatrix, having only the use of the premises for life, at divers times collected money from the sale of the real property, to which the plaintiffs through their mother were entitled, and instead of paying it over to them or either of them she had converted this money to her own use. The learned trial judge dismissed the petition on general demurrer; and in this we think he erred.
The lower court was perhaps of the opinion that the action was demurrable upon the theory that the title to realty was involved. Conceding that assumpsit is primarily a personal action and is not a proper remedy for the trial of title to realty (2 R. C. L. 750, § 9), and that the most frequent application of waiving a tort and suing in assumpsit is to be found where the cause of action is based on conversion of personal property (2 R. C. L. 755, § 15), still we do not think this case is one in which a decision of the question whether one might sue for the result of a tort, such as a naked trespass, on lands, by bringing an action of assumpsit is involved. In the present case it is true, as insisted by the defendant, that, so far as appears from the petition, the money for the privi