114 Ga. 1005 | Ga. | 1902
In October, 1897, Tanner, Currier & Heath and Boswell filed an equitable petition in the superior court of Greene •county, against Sanford, of Floyd county, and Gresham, a constable of Greene county, seeking to enjoin the enforcement of certain distress warrants sued out by Sanford against tenants of Boswell, to set aside a certain judgment in favor of Sanford, and to enjoin Sanford from enforcing such judgment. The petition alleged that in 1893 Sanford instituted an action of ejectment against petitioners to recover certain land in Greene county, which had been conveyed to them by Sanford in 1888. Defendants Tanner, Currier & Heath were not served, and the plaintiff dismissed the suit as to them, and proceeded against Boswell alone. He did not defend, but disclaimed title and.right of possession. Notwithstanding the disclaimer, plaintiff proceeded with his case, and under his evidence a verdict was directed in his favor for the premises in dispute, judgment was entered thereon, and a writ of possession directed to issue. It was alleged that this judgment in ejectment was void as
The case was referred to an auditor to report upon all issues of fact raised by the pleadings, and to take an accounting between the parties. By an amendment filed before the auditor the defendant set up that his deed, if valid, did not entitle plaintiffs to retain the land, as it was merely a security for a debt that had been fully paid. It was also averred that certain collateral notes placed in the hands of plaintiffs by him had been collected; or if they had not been collected, it was solely because of petitioners’ negligence. Defendant claimed further that he sustained damages in loss and sacrifice of machinery, by reason of being deprived of possession of his property, and for waste committed by petitioners during their possession. After hearing evidence on the issues involved, the auditor submitted his report, finding that the note was executed at the time it bore date, in settlement of the account due by Sanford to Tanner, Currier & Heath, and that the deed was given to secure that debt. An itemized statement of the accounts is set out, and a finding made in favor of Tanner, Currier & Heath for the balance due them by Sanford, together with interest as specified in the note; and that Tanner, Currier & Heath had no notice of the eject
The case of Williamson v. Heyser, 74 Ga. 271, is cited for the proposition that the landlord is bound by a judgment in ejectment against his tenant. In that case the action was instituted both against Williamson, the tenant, and Lote, the landlord, and each was made a party and served; and it seems that the only real question was whether the landlord was bound for mesne profits while the land was in the possession of his tenant. The case ruled in express terms that the true claimant of the title to land may be made a party defendant by serving him with a copy of the pending action, and, having been so notified, he would be bound by the judgment both for the land and mesne profits. Following this proposition a ruling is made as a corollary to it, that if the recovery were against the tenant alone for the land and mesne profits, while it would have bound the landlord as to the land, it would not have bound him as to mesne profits. But this corollary must not be understood as asserting a distinct principle of law disconnected from the principal proposition previously ruled. It is true that in the body of the opinion Mr. Justice Hall said: “ If the recovery had been against Williamson alone for the land and mesne profits, while it would have bound Lote as to the land itself, it would not have bound him as to mesne profits.” This is said arguendo, and certainly with reference to the facts of the case. Had the judgment which was rendered in that case been against the tenant alone, for the land and mesne profits, because of the notification the judgment against the tenant would have bound the landlord. It could not under the same rule have bound the landlord as to the mesne profits, because the judgment would have determined which of the two was liable for mesne profits. While the same thing may be said as to the land, yet the rule in ejectment as to land (though not as to mesne profits) is, that where the landlord has notice of the pendency of the suit, and the judgment goes alone against the tenant, the landlord is bound, because he had an opportunity to and
In the case of Blalock v. Newhill, 78 Ga. 245, the only point ruled in this connection was that, in a complaint for land in the statutory form, the real claimant of the title could be made a party defendant by serving him with a copy of the writ, and when so brought into the case it could proceed against him as well for mesne profits as for the land. It is-provided in the Civil Code, § 5001, that “A plaintiff in ejectment may id all cases make the true claimant defendant by serving a copy of the pending action upon him, and the person so notified shall be bound by the judgment.” These are the exact words used in the ruling made in the case of Williamson v. Heyser, supra, and were extracted from the Code of 1882, § 3360, and the principle which they enunciate has been recognized as law in this State for a long period of time. So far as we have been able to discover, there is no adjudication anywhere that the landlord shall be bound by a judgment rendered in an action of ejectment against a tenant, when he has no notice of the pendency of such action, and no opportunity to assert his title. The cases cited by plaintiff in error do not sustain the proposition for which he contends, nor is it a sound one under the common law. On the contrary it may be taken as established that if the owner of the land or the real claimant thereto is not served or notified of the pending action, both upon principle and authority he can not be bound by the judgment rendered against his tenant. So far as I am concerned I do not wish to be held as committed to the doctrine that when one is made party defendant in an action of ejectment and disclaims title and the right of possession, the issue of title, notwithstanding such disclaimer, shall be submitted to the jury, and a verdict on proof of title be rendered against the disclaiming defendant, and a judgment entered thereon against him for the land. By his disclaimer he is forever estopped, as a matter of record, from asserting title to the land which has not been acquired subsequently to the disclaimer; and while the question of the validity of the judgment in this case is not necessary to be passed upon, I must not be understood as acquiescing in its correctness.
But, as has been said, it was claimed against the amendment that the superior court of Greene county had no jurisdiction to rénder a money judgment against Sanford, who was a resident of Floyd county. As an original proposition this would be true; but not only did the pleadings in the case make a question involving the title to land, but the defendant Sanford himself, by the allegations of his answer and amended answer and by the prayers therein contained, distinctly raised this question of title. In the case of Whittle v. Tarver, 7 5 Ga. 818,it was ruled in effect that if the county in which theoriginal suit was filed had no jurisdiction, yet where the defendant filed in that county a bill of review, there was jurisdiction, and a decree rendered therein bound him. But, for another reason, we must rule that the superior court of Greene county, under the circumstances of this case, had jurisdiction to render a money judgment against Sanford. As we have seen, the original petition sought no such judgment, but the decree therefor grew out of the pleadings. Sanford made no question as to the jurisdiction, but subjected himself thereto by coming in and answering the petition on its merits, and hy filing a cross-bill in which he prayed affirmative equitable relief out of which grew the judgment he now says the court had no jurisdiction to render. He not only voluntarily waived jurisdiction, but voluntarily submitted himself to the jurisdiction of Greene county. This he could lawfully do, as between himself and Tanner, Currier & Heath. Civil Code, § 5079. He answered to the merits, without raising the question of jurisdiction; after he had done so, his qon-residence will count for nothing in subsequent proceedings. Phillips v. Thurber & Co., 56 Ga. 394; Macon Railroad Co. v.
Affirmed.