8 S.E.2d 7 | Ga. | 1940
1. Equity cases must be brought in the county in which resides a defendant against whom substantial equitable relief is sought. "Cases respecting title to land" must be brought in the county in which the land (or a part thereof in case of a single tract) lies. The phrase "cases respecting title to land," as used in this context, means actions at law, such as ejectment or statutory substitutes therefor, in which the plaintiff relies on legal title to recover possession of the land or of the land and mesne profits. It does not include actions in which the plaintiff must seek the aid of equity to perfect his title.
2. There is a distinction between suits to establish title to land or to establish the evidence of title, and suits to recover the land upon legal title; the former being suits in equity, and the latter actions at law.
3. The common test as to whether a suit to recover land is one of ejectment simply and is a "case respecting title to land" within the purview of the venue provisions of our constitution and Code is whether the plaintiff can recover on his title alone or whether he must ask the aid of a court of equity in order to recover.
4. In proceedings for the appointment of a guardian taken under the Code, § 49-604, where the required ten-days notice is given to the three nearest relatives, it is not necessary that an affidavit be made that the person for whom a guardian is sought is violently insane and is likely to do himself bodily injury.
5. Nor is it necessary that any service of the application be made on such person or a guardian ad litem be appointed, the notice contemplated by the statute being the mandatory requirement that the commission appointed by the ordinary examine such person by inspection.
6. In a suit in ejectment to recover land, a judgment of the ordinary appointing for the deceased a guardian who under the provisions of the Code acted as the administrator of the estate of the deceased and as such sold the property sued for, can not be collaterally attacked for defects not appearing on the face of the record.
7. Whatever powers a court of equity may have to permit an attack on such a judgment, they can not be invoked if none of the parties against whom substantial relief is prayed are residents of the county in which the suit is brought.
8. The petition in the present case was properly construed as one seeking to establish title to the land, and not to recover on legal title, and was properly dismissed for the reason that none of the defendants against whom substantial equitable relief was sought were residents of the county in which the suit was brought.
9. The notice to the nearest relatives of an alleged mental incompetent, required by the Code, § 49-604, may be given either before or after the application is actually filed, provided it is given ten days before the commission issues and gives notice of the time the commission is to be issued.
It is alleged, that the commission made their report without having gone in a body to see and examine J. M. Owenby, and without having made any examination of him while assembled as a commission in his presence; that no service was made upon him, and no guardian ad litem appointed for him; nor was any service on any relative of his or on any other person, nor was an acknowledgment of service of said application made by any person, nor was an affidavit made and filed in connection with said application, by any relative, by any physician, or by any other person, that Owenby was violently insane or likely to do himself bodily harm. Annexed to the record in the office of the ordinary in Cherokee County is a certain notice dated March 15, 1937, signed by W. R. Stancil, directed to "Mary Owenby, the wife of J. M. Owenby, Winnie Owenby, Owenby Mullins, Josie Owenby Stancil, and James L. Owenby," as follows: "You are hereby notified that I have this day applied to the ordinary of Cherokee County, Georgia, asking that a commission be appointed to examine J. M. Owenby as to his *53 ability to manage his estate, on account of imbecility, and that after the expiration of 10 days, to wit, March 29th, if no objections are filed, said ordinary will appoint a commission to examine said J. M. Owenby; and if found incapable on account of imbecility resulting from old age, a guardian will be appointed for him." There appears in the record an acknowledgment dated March 17, 1937, purporting to be signed by all the persons to whom the motion is directed, in these words: "This is to acknowledge receipt of the above notice, and the undersigned agrees for a commission to be appointed and determine whether or not J. M. Owenby is competent to look after his own affairs. In the event he is found incompetent, we select as his guardian J. W. Lacy, of Cherokee County, Georgia, and respectfully ask the court to appoint him as such." Josie Owenby Stancil is the wife of W. R. Stancil.
It is alleged, that the signature of Mary F. Owenby is a forgery, not being put there by her or with her authority or consent; that the entire guardianship proceeding in Cherokee County was fraudulent and in furtherance of a fraudulent scheme of Stancil and Lacy; that defendants have no claim of title to the land except under said proceedings; and that these proceedings were void, because (1) that the appointment of Lacy as guardian and the intervening steps, all taking place on the same day, were contrary to law; (2) that no notice was given to the next of kin; (3) that the purported notice was not of "such application," but was notice of an intention to make an application; (4) that no affidavit was made that Owenby was violently insane or liable to do himself bodily injury; (5) that no physician made any such affidavit; (6) that the commission as a body did not examine Owenby or have him brought before them for examination; (7) that he was given no notice of the application, nor was any guardian ad litem appointed, nor was he given any opportunity to be heard; (8) that he was not a resident of Cherokee County, but of Colquitt County, and a lunacy proceeding was pending in Colquitt County; (9) that the appointment was procured by the fraud of Stancil and Lacy. In August, 1937, Lacy as guardian advertised said land for sale, and offered it for sale on the first Tuesday in September, 1937, and Lacy and Stancil were both present. T. J. Owenby appeared at the sale and gave public notice to them and all others that the claimed guardianship was void, but the property was knocked off *54 to J. H. Southwell for $2650. The bid was not paid, and no steps were thereafter taken to enforce it; but Lacy, under his claim as guardian, continued to hold possession for the years 1937 and 1938, and by tenant in 1939. J. M. Owenby died on March 21, 1938. Claiming to succeed to the administration by operation of law under his claimed guardianship, Lacy undertook to administer his estate. As such, during June, 1938, he advertised the land for sale in the official gazette of Cherokee County, and sold it on the first Tuesday in July, 1938. Certain irregularities in the sale, not necessary to be set forth, are alleged. Lacy as administrator made a deed to Stancil for a consideration of $1600. It is alleged, that the deed is null and void, "because the guardianship was void, and because of the fraud in the sale to Stancil;" that Stancil is insolvent, and will continue to collect the rents; that plaintiffs have no complete and adequate remedy at law to protect all their rights; that a receivership as to the land and the rents is necessary to protect the plaintiffs against the loss of the rents; and that the bank should be enjoined from foreclosing its security deed. It is then alleged: "The main object of this action is to recover possession of said land and mesne profits under and by virtue of the claim of title herein set up by petitioners. All equitable relief herein sought is in and of and ancillary to that main object. All other relief sought herein is a proper part of such a case."
Other allegations are deemed immaterial here. It is prayed (a) that the title to the land be adjudged and decreed to be in plaintiffs; (b) that writ of possession and all other appropriate writs issue; (c) that the defendants be enjoined from changing the present status; (d) that a receiver be appointed to take charge of the land and collect the rents; (e) and for all further appropriate relief.
Stancil, Lacy, and Etowah Bank moved to dismiss the case, on the ground that no substantial equitable relief was prayed against any of the defendants who resided in Colquitt County; and that the court had no jurisdiction of the case. The motion was sustained, and the plaintiff excepted. 1-5. It has been necessary to state the petition with some fullness, *55 to make plain the point in the case and the nature of our decision. The defendants won in the court below on the theory that the action was such an equitable action as that it could be brought only in Cherokee County, under the provisions of the constitution, art. 6, sec. 16, par. 3 (Code, § 2-4303), that "Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." The contention of the plaintiff is that it is a case respecting title to land, and therefore was properly brought in Colquitt County where the land lies, under the provision of the constitution, art. 6, sec. 16, par. 2 (Code, § 2-4302), that "Cases respecting titles to land shall be tried in the county where the land lies."
"Our law makes a distinction between suits to establish the title to land or to establish the evidence of title, and suits to recover the land upon legal title; the former being suits in equity and the latter actions at law." Powell on Actions for Land, § 150. The "cases respecting titles to land" referred to in art. 6, sec. 16, par. 2, of the constitution (Code, § 2-4302) are actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant, for recovery of land or recovery of the land and mesne profits. The test stated inFrazier v. Broyles,
The foundation of the plaintiff's right to recover the land is found in her allegations that her husband, J. W. Owenby, died intestate in March, 1938, a resident of Colquitt County, as the owner thereof, and that it was duly set apart to her as a year's support under the Code, § 113-1002 et seq. Had the plaintiff stopped here, she would have shown a presently enforceable legal title against the possession of the defendant, for recovery of the land, *56 and under the principles already stated her action would have been on its face one respecting title to land, and as such, under the constitution, properly instituted in Colquitt County where the land is situate. This she did not do; but, anticipating the defendant's defense, she alleged that, on the representation of the defendant Stancil that Owenby was an imbecile and incapable of managing his estate, the ordinary of Cherokee County in March, 1937, appointed the defendant Lacy as his guardian under the Code, § 49-604; that, acting under the authority of § 49-316, which provides, in substance, that upon the death intestate of a person under guardianship, the guardian becomes the administrator of his ward's estate by operation of law, Lacy proceeded to administer the estate of Owenby, and as his administrator sold the property to the defendant Stancil. If the judgment of the court of ordinary of Cherokee County, appointing a guardian for Owenby, is void and may be so dealt with in the proceeding to recover the land, instituted in the superior court of Colquitt County, it would follow that the deed would be void, and the plaintiff would show a present enforceable legal title to the property. If, on the other hand, the judgment must be treated as valid in such a proceeding, her action must fail. She alleged that the proceedings for the appointment of a guardian for Owenby and the judgment rendered thereon were void, for the various reasons set out in the statement of facts.
In Morton v. Sims,
Nor does the statute require any service of the application to be made on the alleged lunatic by the sheriff or other officer, or that a guardian ad litem be appointed. The notice contemplated by the statute is, as was pointed out in Georgia Railroad Bankc. Co. v. Liberty Bank c. Co.,
6. It is further alleged that the "commission made their . . report without having gone in a body to see and examine the said J. M. Owenby, and without having made any examination of said J. M. Owenby while assembled as a commission, in his presence." This provision is mandatory, and unless complied with the ordinary is without jurisdiction to appoint a guardian. Singer v.Middleton,
While it is provided in the Code, § 110-709, that "The judgment of a court having no jurisdiction of the person or subject-matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it," and again, in § 110-701, that "A void judgment may be attacked in any court and by any person," these sections have generally been construed to refer to judgments void on their face, it being the general and almost universally accepted rule that a *59
domestic judgment can not be called into question in a collateral proceeding, except for defects apparent on the face of the record, such as would render the proceedings void. Thomas v.Lambert,
It is true that this court, in Johnson v. Wright,
7. The point that the record of the proceedings in the appointment of a guardian shows on its face a failure to comply with the jurisdictional requirement of ten-days notice to the three nearest adult relatives is without merit. It is admitted that the record contains a notice dated March 15, 1937, which was fourteen days before the hearing, on which appears an acknowledgment of service purporting to have been signed on March 17, 1937, by the wife and children of the alleged incompetent. It is contended that the application was not actually filed until March 29, the day that the guardian was appointed, and that the notice given before the filing of the application was not a compliance with the statute. We do not deem the point well taken. The statute does not require that the application must actually be filed before the notice of the filing of it can be given. The pertinent language of the statute is: "Upon the petition of any person on oath, setting forth that another is liable to have a guardian appointed (or is subject to be committed to the Milledgeville State Hospital), and upon proof that ten-days notice of such application has been given to the three nearest adult relatives of such person, or that there is no such relative within the State, or where such notice is waived in writing by such relatives, and affidavit is made by any one of such relatives or other person that such person is violently insane and is likely to do himself bodily injury, and where the truth of such affidavit has been verified in writing by a practicing physician appointed by the ordinary to examine such person, the ordinary shall issue a commission," etc. Under the terms of this statute the giving of the notice of the time the ordinary is to issue the commission is sufficient if given either before or after the application is filed, provided the statutory ten-days notice expires before the commission issues. The fact that the notice set out in this record stated that an application had been filed, when the record shows that it had not in fact been filed, is immaterial under the above view, since the notice also gave the date the ordinary was to issue the commission.
Judgment affirmed. All the Justices concur. *62