Stanley v. Laurens County Board of Education

188 Ga. 581 | Ga. | 1939

Jenkins, Justice.

This court can not consider, an amendment to a petition, which was offered,.not only after the judgment of this court reversing the judgment of the trial court overruling a general demurrer to the petition was made the judgment of the trial court, but at a subsequent term, and two weeks after the trial court had finally dismissed the petition on general demurrer, following a properly allowed first amendment. Wells v. Butler’s Builders Supply Co., 128 Ga. 37 (2, 3), 39 (57 S. E. 55); Southern Mutual Insurance Co. v. Turnley, 100 Ga. 296 (7), 302 (27 S. E. 975); Real Estate Bank & Trust Co. v. Baldwin Locomotive Works, 145 Ga. 105 (88 S. E. 584); Alexander v. Chipstead, 152 Ga. 851 (3), 861 (111 S. E. 552); Savannah, Florida & Western Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437); Charleston & W. C. Ry. Co. v. Miller, 115 Ga. 92 (41 S. E. 252); Jackson v. Security Insurance Co., 177 Ga. 631 (170 S. E. 787); Berrien County Bank v. Alexander, 154 Ga. 775, 777 (115 S. E. 648). Accordingly, it was error to allow this amendment, as complained of in the cross-bill of exceptions.

In accordance with the foregoing ruling, this court .can consider only the first amendment of the petition; and by this amendment the former judgment of the trial court as affirmed by this court (Dominey v. Stanley, 162 Ga. 211, 133 S. E. 245) was not pleaded, so as to constitute res judicata or an estoppel by judgment against the defendants in the present suit. This was decided in the recent decision by this court wherein it was held that the present petition as originally brought did not invoke the ruling made in the Dominey case. Laurens County Board of Education v. Stanley, 187 Ga. 389, 390 (200 S. E. 294). Nor could such former judgment be binding against the present defendants, the county board of education and the trustees of the school district, for the reason that none of the present parties defendant were parties in the former suit, which was brought against certain named individuals who were sued in their individual capacity.

“A deed purporting to convey land, which is so indefinite in description that the land is incapable of being located, is inoperative either as a conveyance of title or as color of title.” Luttrell v. Whitehead, 121 Ga. 699, 701 (49 S. E. 691); Crawford v. Verner, 122 Ga. 814, 816 (56 S. E. 1004); Whitehead v. Pitts, 127 Ga. 774 (4), 777 (56 S. E. 1004); May v. Sorrell, 149 Ga. 610 (2) (101 S. E. 535). Under the decision of this court in the present suit (187 Ga. 389, supra), “the deed under which the petitioners claim title to the land [was] absolutely void as a muniment of title [because of its insufficient description of the land], and . . the petition [failed] to state a cause of action for the relief sought.” Although the first amendment of the petition, made before the judgment of this court was made the judgment of the trial court, set forth a sufficient description of the property now claimed by the petitioners, the amendment contained nothing which would validate the deed or make it good color of title. Accordingly, the petition as thus amended failed to show any title in the petitioners by seven years adverse possession under color of title, as provided in’ the Code, § 85-407.

Nor did the petitioners, suing as trustees, by their first amendment show title to any part of the property claimed by virtue of their actual possession thereof for twenty years, as provided by the Code, § 85-406. This is true for the reason that the original void deed was executed merely to “the trustees of Centerville schoolhouse,” without naming any persons a§ trustees; and the petition fails to show that any persons were named as trustees until a decree of the trial court in 1925 named the present persons and others as trustees. Obviously they could not have been in actual possession of any of the land as trustees for the required twenty years.

It affirmatively appearing from the petition that the plaintiffs, although in actual possession, are without any title or right of possession, they are not entitled merely by virtue of such unauthorized possession to the remedy of injunction against interference by the defendants, as alleged trespassers, with the property as to which the plaintiffs are without either title or right of possession. See Mayor &c. of Forsyth v. Hooks, 182 Ga. 78 (184 S. E. 724).

For the reasons stated, the court did not err in dismissing the action on general demurrer after the first amendment of the petition.

Judgment affirmed on the mam bill of exceptions, and reversed on the cross-bill.

All the Justices concur.