183 Ga. 282 | Ga. | 1936
This was an action for recovery of a described tract of land consisting of 160 acres, more or less, situated in Floyd Count]', Georgia. The court sustained a demurrer and dismissed the action, and the plaintiffs excepted.
Albert Sharpe, Lucile Page, and Sarah Belle Page, who are sui juris, and Willie Mae Burnette, Mildred Sharpe, and Clinton Sharpe, the three last named being minors and suing by another as next friend, were the plaintiffs in the court below, and Mrs. Willie Bell Autry was the defendant. The petition alleged the following: Mrs. S. E. Sharpe, the grandmother of the plaintiffs, formerly owned the land in question. Her son Jim H. Sharpe lived on the land for eighteen or twenty years, and finally, in the
The plaintiffs were unable to attach a verbatim copy of the deed to their father. They alleged, however, that the deed was written upon a printed form, and recited that it was signed, sealed, and delivered, and that it did convey to Jim II. Sharpe the title to
The defendant’s demurrer contained numerous grounds. The court sustained only the first two grounds of the original demurrer and. one additional ground added by amendment, without passing upon other grounds. The grounds thus sustained were as follows : (1) The petition “sets forth no cause of action against this defendant.” (2) The suit “is prematurely brought against this defendant, and any right of action in the plaintiffs would be against the executrix of the last will and testament of Mrs. S. E. Sharpe, and not this defendant.” (3) “There is a nonjoinder of parties defendant, for the reason that the representative of the estate of Mrs. S. E. Sharpe is a necessary party defendant.”
The petition alleged sufficient facts to show that the plaintiffs’ .father was the owner of the land at the time of his death, and that upon his death they succeeded to the title by inheritance. The plaintiffs alleged that there was no administration of the estate of their father; and so, upon the death of the grandmother, who seems to have retained some sort of life-interest, they were entitled to sue in their own names for the recovery of this property. Reed v. Norman, 157 Ga. 183 (2) (121 S. E. 310). If the plaintiffs’ father was in possession of the land under a deed from his mother, as alleged in the petition, the grantor in such deed could not regain title to the property by reclaiming the deed or by suppressing or destroying it. 18 C. J. 217, 405. The petition stated a cause of action, and therefore was not subject to the first ground of demurrer, the same being a general ground.
It is argued for the defendant that the suit was properly dismissed, because the plaintiffs brought a joint action for the recovery of their several undivided interests. This contention is based upon some theory as to a misjoinder of parties which could not be raised except by special demurrer. Furthermore, it was permissible for the plaintiffs to unite in one action for the recovery of the separate interests of each. Blake v. Black, 84 Ga. 392 (2) (11 S. E. 494); Greenfield v. McIntyre, 112 Ga. 691 (5) (38 S. E. 44); McElroy v. McElroy, 142 Ga. 37 (3) (82 S. E. 442).
It does not appear that the widow of Jim H. Sharpe has made any election either to take a child’s part or to claim dower. Accordingly, the widow does not appear to have any interest in the land. Darnell v. Williams, 171 Ga. 651 (156 S. E. 584). But even if she does have an'interest, this fact alone would not render the suit of the children subject to general demurrer. Code, § 33-103.
Since the petition was not subject to general demurrer or to any of the special grounds of demurrer which the court sustained, it was error to dismiss the action.
Judgment reversed.