120 Ga. 984 | Ga. | 1904
(After stating the facts as above.)
Counsel for the plaintiff in error, in argument before this court,, relied mainly on the cases of Wynne v. Lumpkin, 35 Ga. 208, and Prater v. Bennett, 98 Ga. 413. In the former case all the transactions grew out of an alleged fraudulent deed to land, and all of' the defendants were charged to be connected with the fraud. Moreover, the case was decided by only two judges, and, even if it were in conflict with our present ruling, would not be binding authority. By reference to the report of the facts in Prater v. Bennett, it will be seen that in order for the plaintiff to have the deed from Findleyto Prater reformed, it was necessary that both the grantee and the executrix of the deceased grantor should be parties to the ease. When it was determined that the plaintiff was entitled to have this deed reformed, in order that it might be legally ascertained and declared what portion of the land was owned in common by Prater and herself, and what portion was owned in common by the estate of Findley and herself, it naturally followed that Prater and the legal representative of the estate of Findley were not only proper, but necessary, parties to the equitable proceeding. The ruling in that case that the petition was not multifarious because the plaintiff sought both to reform the deed in question and to recover damages for trespasses committed by Prater upon land owned in common by the plaintiff and the estate of Findley, and not embraced in the deed, is the one which it has seemed somewhat difficult to reconcile with rulings both previously and subsequently made by this court upon the subject of multifariousness. But this ruling was put upon the ground that, “under our system of pleading, both equitable and legal rights may be asserted in the same proceeding;” and “the superior court having jurisdiction of the entire controversy between plaintiff and Prater, and having before it the representative of the only other person interested in the subject-matter of dispute, it [would] be better for all concerned to have the various issues in controversy adjusted and disposed of by one trial.” (See p. 416.) It will be seen that all three of the parties there
■Judgment affirmed.