156 Ga. 136 | Ga. | 1923
(After stating the foregoing facts.)
The petition sets out a cause of action. It alleges that the plaintiff was the owner of certain described land lots, and that its title and claim thereto were known to the defendant at the time she applied to have the title thereto registered in her name. It further alleges that the defendant, at the time she applied for such registration, asserted title to these lots under a forged deed, which
By section 7 of the land-registration act (Acts 1917, p. 108); the petition of the applicant for registration of title to land must show when, how, and from whom it was acquired, a description of title by which he claims the land, and an abstract of title. The applicant must allege and prove good title in himself, to warrant a decree awarding registration of title. Where the applicant for registration does not show that he has a good title to the laird, his petition should be denied. Glos v. Cessna, 207 Ill. 69 (69 N. E. 634); Glos v. Holberg, 220 Ill. 167 (77 N. E. 80); Teninga v. Glos, 266 Ill. 94 (107 N. E. 125); McDonnell v. Glos, 266 Ill. 504 (107 N. E. 897); Lienau v. Insular Government, 6 Philippine, 230; Inocencio v. Gat-Pandan, 14 Philippine, 491; Oligan v. Mejia, 17 Philippine, 494; Villa Abrille v. Banuelos, 20 Philippine, 1.
A forged deed is a nullity, and vests no title in the vendee. Cole v. Long, 44 Ga. 579; Gardner v. Granniss, 57 Ga. 539 (9); Sapp v. Cline, 131 Ga. 433 (6) (62 S. E. 529). If the applicant had no title to these lands because the deed under which she asserted title was a forgerjq which forgery was known to her, she was gujlty of a gross and rank fraud, which authorized the true owner to institute his equitable proceeding to set aside the certificate of registration obtained by the defendant under the above circumstances, and to have said forged deed canceled and the certificate of registration set aside or transferred to the plaintiff as the true owner of the land.
A proceeding under the land-registration act is, by the express words of section 4 thereof, a proceeding in rem. A judgment in rem is conclusive upon everybody. Civil Code (1910), §
But it is insisted by counsel for the defendant that the plaintiff 'had a summary remedy under section 60 of this act. This summary remedy, under section 59 of this act, must be applied for within twelve months from the date of registration of title in the name of the applicant therefor. One of the decrees registering title in the defendant to some of the lots in controversy was rendered more than twelve months prior to the filing of the petition in this case. The other decree registering title in the name of the defendant to most of these lots was rendered within twelve months prior to the institution of this suit. Clearly as to those lots embraced in the first decree, and not included in the second decree, this summary,, remedy was not available to the plaintiff. Furthermore, the plaintiff seeks other and additional relief which could not be obtained under the summary proceeding-provided for under section 60 of this act; and for this reason a plenary suit in equity would lie. Besides, when a statute gives a summary remedy and a plenary remedy in cases where registration of title has been obtained by fraud or forgery, the party aggrieved can pursue either of these remedies. In such cases the existence of the summary remedy does not debar him from the plenary remedy. “It is not contemplated that this should be made a substitute for that jurisdiction which it is-intended that courts shall still continue to exercise in bona fide justiciable controversies substantially affecting the rights of the parties.” Powell on Land ^Registration, § 185. At least the party aggrieved has a choice of these remedies. The equitable remedy is fuller and more complete. Under the facts of the case at bar, the summary remedy does not afford a full, complete, and adequate remedy; and for this reason the existence of a summary remedy is no bar to a resort to the plenary equitable remedy. We do not think that the existence of this summary remedy deprives a court of equity of its general power to set aside judgments procured by
But it is insisted that the petition does not set out why the facts alleged in the petition were not known to the petitioner at the time when the application for the registration of the title to these lots was made; and that for this reason it sets forth no cause of action, because the plaintiff had its day in court, and it is now too late to raise the questions made by its petition in this case. The reply is that section 63 of this act excepts from the conclusive and binding force of decrees registering titles in applicants “ cases of fraud or forgery.” In such cases the decrees do not conclude adverse claimants. By its express terms this statute takes the true owners of lands out of the rule laid down in the Civil'Code (1910), § 4585, that “ Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a -good defense of which he was entirely ignorant, or where he was prevented from making it by' fraud or accident,' or the act of the adverse party, unmixed with fraud or negligence on his part.” In cases of fraud or forgery the decree registering title in the name of an applicant for such registration is not a bar to a proceeding by the true owner to set aside such registration, if he moves in seven years. The court erred in sustaining the demurrer to the petition, and in dismissing the same.
■ In view of the above rulings, the grounds of special demurrer are without merit, and should not have been sustained.
Judgment reversed.
