Young v. Georgia Home Insurance

131 Ga. 54 | Ga. | 1908

Beck, J.

(After stating the facts.) The court below did not err in allowing the plaintiff to dismiss its petition. The plaintiff’s petition is not merely the statutory proceeding to establish a lost deed. It contained allegations entitling it to certain equitable relief,, which was prayed for, and process was prayed for and issued. That being true, an order of dismissal upon petitioner’s own motion should not have been granted if the answer of the defendants, in addition to allegations purely responsive, set up matters which made a case entitling them to affirmative relief. This, however, we think it failed to do. The first five paragraphs of defendants’ answer, so far as they contain material averments, are purely responsive to the petition, and contain nothing which would prevent a dismissal. And, omitting matter which was totally immaterial in the remainder of the answer, it contained a vague attempt to set up facts to show title in defendants to an undivided one-half interest in the property in dispute. ' While defendants do allege that the title to an undivided one-half interest in the property is vested in them and that they are tenants in common with plaintiff, this allegation is nothing more than a conclusion; and when we look to the allegations of fact upon which this conclusion is predicated, they seem to be lacking in clearnéss, positiveness, and directness. They do not clearly and plainly state a case authorizing the conclusion stated, to wit, that they are tenants in common with plaintiff. Paragraphs 6, 7, 8, and 9 of the answer embrace no matter germáne to the cause of action. It is stated in the brief of counsel for defendant in error that all of paragraphs 6 and 7 were stricken upon special demurrer, but we find no order in the record sustaining a special demurrer to the paragraphs mentioned. But whether they be true or not, they do not set forth facts of sufficient materiality to alter the conclusion that we have reached. The remainder of the answer, omitting the prayer; is as follows: “Paragraph 10: Defendants aver that it was rumored and understood by the members of the family of John Banks, that said P. W. Dillard had induced said John Banks to sell and convey to him the title to said property; and that he had procured the title for a nominal sum in Confederate money. And, although they knew the infirm condition of John Banks both in mind and body, yet they had not then, and have not now, any disposition to attack or question any of the deeds of conveyance executed, signed, sealed, and delivered by John Banks, their ancestor. Paragraph 11: But defendants aver that they never heard, until the filing and service- of this' suit, that John Banks only conveyed an undivided one-half interest in said lands, or to any interest in said lands whatever. Wherefore, they deny that John Banks ever made, executed, signed, sealed, and delivered any conveyance of title to said plaintiff; and [aver] that the copy of the deed sought to be established as a correct copy of a lost original is not a copy, and there never existed an original deed as claimed in said petition. Par. 12: Defendants aver, that, being of the opinion that John Banks had conveyed the entire title to F. W. Dillard, who had entered into possession as the tenant of John Banks, at the close of the war, amid the desolation caused thereby, and with the said John and Sarah Banks in their old age and infirmity, incapacitated to look after business, and their sons residing out of the county, no investigation was ever made into the state of the title of John Banks to said land; hut the matter was allowed to pass,, the family believing that John Banks had conveyed the entire title and not simply an undivided one-half interest to F. W. Dillard. Defendants aver that they never heard of plaintiff claiming any title from. John Banks until this suit was filed and served upon them. Par. 13: They aver that "no demand was made by them on plaintiff for possession, nor did plaintiff ever give to them any express notice of holding said lands adversely to them as heirs at law of John Banks, or as legatees or heirs at law of Sarah Banks; and that the possession was allowed to pass out of defendants, as is hereinbefore stated, and that no actual ouster has ever been made. Par. 14:. Wherefore they deny the averments in plaintiff’s petition, and demand strict proof of the same; and say that the title to an undivided one-half interest in said land and premises is vested in them as tenants in common with the plaintiffs.” We have set forth at length this extract from the answer, because it illustrates forcibly the comments which we have made as to the attempt upon the part of the defendants to state a case which would entitle them to affirmative equitable relief. The defendants aver that “it was rumored and understood by the members of the family of John Banks” that the said Banks bad conveyed out of himself to one Dillard the entire title to the property in controversy, and the defendants insist that they “have not now any disposition to attack or question” that conveyance. They do deny that they had ever “heard, until the filing and service of this suit, that John Banks only conveyed an undivided one-half interest in said lands to said F. W. Dillard. They further aver, that they never heard of the plaintiff having received any title from John Banks to an undivided half interest in said lands, or to any interest to said lands whatever.” “Wherefore they deny that John Banks ever executed . . any conveyance of title to said plaintiff.” The use of the word “wherefore,” and the connection in which it stands, is to be especially noted; it converts a positive denial into a denial that is to be construed in connection with the preceding and accompanying allegation in the answer. The second paragraph of the petition alleges that on the 4th day of August, 1863, petitioner purchased the property in question from John Banks and F. W. Dillard, each of whom executed to the president of the plaintiff company a deed in fee simple to an undivided one-half interest in the property in question. The answer, in response to that paragraph of the petition, avers that defendants, for want of sufficient information, are- unable to admit “the averments made in the second . . paragraph of plaintiff’s petition, and demand strict proof of every averment contained in said paragraph.” And, as we have observed above, in paragraph 11, there is a qualified denial of the execution of such a conveyance by John Banks, the defendants alleging that the “understanding and belief” and “the opinion” were that John Banks had divested himself of title to the property in question by a conveyance to Dillard. Taking into consideration the vague and unsatisfactory allegation tending to show title in the defendants, and bearing in mind the rule that pleadings are to be construed most strongly against the pleader, we do not think that the court erred in holding that the petitioner should he allowed to dismiss the case, especially as care was taken, in framing the order, not to impair any rights that the defendants might have in a proper suit to set up and establish their rights to the property in question, if, after final investigation, they should determine that “the understanding and belief” that John Banks had conveyed all of his title and interest in the property to Dillard was a mistaken belief and understanding, and that as a matter of fact an undivided one-half interest in the property was vested in John Banks at the time of his death, so as to pass to his heirs at law upon his demise.

Judgment affirmed.

All the Justices concur.