Brown v. Martin

73 S.E. 495, 137 Ga. 338, 1912 Ga. LEXIS 12

• Court: Supreme Court of Georgia
• Decided: January 9, 1912
• Status: Published

Opinion

Hill, J.

(After stating the foregoing facts.) There is no merit in the 1st and 2d grounds of the demurrer. Acts of waste on the part of the life-tenant, of the character alleged in the petition, would give the remaindermen the right to bring an action to declare a forfeiture of the estate of the life-tenant, as provided for in the Civil Code (1910), § 3666. In view of the recital of the court in his order quoted in the statement of facts, that by agreement both parties treated the decree referred to in the petition as though it were a part thereof, the third ground of demurrer will be considered as having been waived. It might be here remarked, however, that this decision, in its entirety, is made without reference to the decree; as it does not appear to have been actually attached to the petition and was not brought to this court. This statement is made in view of the fact that the plaintiffs may have been parties to the decree and bound thereby, and it may have contained provisions which would affect their rights with respect to the present litigation. There is no merit in the 4th ground of demurrer. Paragraph 1 of the petition gives the numbers of the land lots involved, and this description, taken in connection with the allegation elsewhere in the petition that the property is situated in Calhoun county, sufficiently identifies the land referred to, or can be made to do so when aided by parol testimony.

This brings us, to the 5th and last ground of the demurrer, by which the defendant Martin challenges the jurisdiction of Calhoun superior court with respect to him. Counsel in their briefs largely deal with the ease on the theory that it is an equitable proceeding and should be located in the county of his residence, because he is the defendant against whom substantial relief is prayed; however, counsel for the plaintiffs in error does insist that the suit is one respecting title to land, and therefore properly brought in Calhoun county, where the land in controversy is situated. In order to determine the venue of the suit, it is important to classify the action. "While the petition does not in terms so state, the suit evidently is brought under the statute of this State providing for a forfeiture in behalf of the remainderman against the life-tenant in the event the latter wastes the estate, which statute is hereinafter copied. Originally at common law an action of waste was maintainable only against the holder of the legal estate of a guardian in chivalry, or tenant in dower or by the curtesy, on the theory that, this class of estates being creatures of the law, the law would protect the inheritance of the heir by affording him a remedy for waste committed. No action could be maintained against the holder of an estate for life or for years, since they were created by the demise or lease of the owner, and it was deemed that his failure, when granting the estate, to provide against waste by the tenant constituted an act o'f neglect on his part, the consequences of which he would be left to suffer. 2 Bl. Com. 283. The statute of Marlbridge (52 Henry III, c. 23) extended the common-law liability so as to make it apply to tenants of the last-named class and to make them liable for full damages resulting from waste; and the statute of Gloucester (6 Edward I, c. 5) gave a more stringent remedy in such cases by a writ of waste, under which the tenant was liable to forfeiture of the thing wasted and treble damages. 2 Bl. Com. 283-284; 1 Beeves on Beal Property, § 558; Roby v. Newton, 121 Ga. 679 (49 S. E. 694). In Parker v. Chambliss, 12 Ga. 235, it was "held: “In this State, a tenant in dower is liable for waste committed on the estate, but she does not thereby forfeit her estate and treble damages, as provided by the statute of Gloucester. The remedy against her is by action on the case, in the nature of waste, to recover the actual damage done to the estate; or by an injunction to restrain her from committing waste, when necessary, on a proper case made.” In the opinion Judge Warner, after pointing out that we had adopted the common and statute law of England only where “properly adapted to the circumstances of the inhabitants of this State,” and quoting Chancellor Kent to the effect that the writ of waste had gone out of use and a special action on the case in the nature of waste had superseded the common-law remedy, on p. 238, said: “We therefore adopt- and recognize the principles of the common law, including the statute of Gloucester, so far as to make the tenant in dower liable for waste committed; but reject the harsh and penal remedy provided by that statute.” This decision was made in 1852. The Code of 1863, § 2235 (which is identical in language with § 3666 of the Code of 1910), contained the following provisions: “The tenant for life is entitled to the full use and enjoyment of the property, so that in such use he exercises the ordinary care of a prudent man for its preservation and protection,- and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. Eor the want of such care, and the willful commission of such acts, he forfeits his interest to the remainderman if he elects to claim immediate possession.” In Dickinson v. Jones, 36 Ga. 97, a case of injunction to restrain threatened waste, it was assumed that the statute of Gloucester was of full force in Georgia; but in Woodward v. Gates, 38 Ga. 205, 212, it was pointed out that the apparent holding in the Dickinson case was obiter, no question of forfeiture being there involved, and the true rule in Woodward v. Gates was declared to -be that the effect of the adoption of the Code of 1863 was, that (p. 213), “in case of waste, the tenant for life shall forfeit his interest to the remainderman, if he elects to take immediate possession. But the rule of the statute of Gloucester as to treble damages is not still adopted.” And this decision was construed and followed in Belt v. Simkins, 113 Ga. 894 (39 S. E. 430). It appears, therefore, .that the present statute, Civil Code (1910), § 3666, quoted supra, is declaratory, and at the same time restrictive, of the common law, and that the right of action thereunder is purely an action at law. What was the nature of this action at common law? Blackstone .says: “This action of waste is a mixed action; partly real, so far as it recovers land, and partly personal, so far as it recovers damages.” 2 Bl. Com. 228; 3 Id. 118. It would seem, therefore, that, our statute having eliminated the treble-damages feature and retained only the forfeiture provided for by the common law, an action brought under such statute would be a real action. The suit in the present ease is based purely on this statute. It is in no sense an equitable action and no equitable features are involved. The allegations of the petition, simplified, are to the effect that the life-tenant has been guilty of acts of waste within the meaning of the statute, and thereby rendered his estate subject to the forfeiture, and that the remaindermen elect to have such forfeiture declared and to. take immediate possession of the estate. The prayers all seek relief within the bounds of the statute; that is, that the interest .of the life-tenant be declared to be forfeited and the plaintiffs be put in possession of the land. True there is an additional prayer that the defendants be required to account for the rental value of the premises since the filing of the suit, but this is merely a prayer for incidental relief with respect to a right which will accrue to the plaintiffs pending the action, provided they succeed in maintaining their claim of forfeiture, which, if declared, would relate back at least to the filing of the suit. There is also a prayer to the effect that the plaintiffs recover the premises free of any charge for the maintenance of the life-tenant, or any one holding under her. The property was conveyed to the life-tenant for life, for the comfortable maintenance of herself and children. The children are the remaindermen and are the plaintiffs in this ease. The right of the life-tenant to maintenance from the property is incidental to and part of her life-estate, and would cease with the loss of that estate, in the event a forfeiture thereof be declared. Neither of the prayers just mentioned seeks any relief other than is incidental to an action under the statute. The suit being one in which no equity is invoked, but purely a real action under a statute having'its origin in the common law, its venue is not affected by the constitutional provision that equity cases shall be tried in the county of the residence of a defendant against whom substantial relief is prayed. (It might here be remarked that no equity jurisdiction can attach with respeet to legal waste, except for purposes of injunction. 5 Pomeroy’s Eq. Jur., § 491.)

“Real actions at common law were those by which all disputes concerning corporeal hereditaments were decided.” Will’s Gould on Pleading, 6. They extended to actions claiming title to rents, commons, and the like, in fee simple, fee tail, or for life, as well as actions for the recovery of the land itself. 3 Bl. Com. 117. Such actions were local in character. 3 Bl. Com. 294. But with us the venue of suits is now controlled by constitutional and statutory provisions. In addition to the constitutional provision regarding equity cases above referred to, the constitution further declares that “cases respecting titles to land shall be tried in the county where the land lies;” and, with exceptions as to specified actions not material here to mention, that “all other civil cases shall be tried in the county where the defendant resides.” This suit was .brought in Calhoun county, in which the land involved is located. The demurrers were filed by the defendant Martin, who did not reside in that county; and unless the suit was one “respecting titles to land,” within the meaning of the constitutional provision referred to above, there was no jurisdiction over Martin. Was it such a suit F Numerous adjudications have been made with respect to what did or did not constitute an action respecting titles to land, but án examination of all the cases we have been able to find discloses that those held not to be of this nature are, in the main, redu- ’ cible as follows: (a) Those in which the action sounded in trespass and the object was the recovery of damages, or proceedings were for the purpose of injunction to prevent trespass, or an attempt was made to fasten a lien on property — actions in which the question of title was only incidentally involved to the extent of showing a right on the part of the plaintiff to maintain his action. Examples of this class are, Osmond v. Flournoy, 34 Ga. 509; Powell v. Cheshire, 70 Ga. 357 (48 Am. R. 572); Beckwith v. McBride, 70 Ga. 642, and Wheatley v. Blalock, 82 Ga. 406 (9 S. E. 168). (&) Those in which the legal title was out of the plaintiff, and it was sought to cancel a deed, or to obtain specific performance, or in some other way invoke the aid of a court of equity in order to establish the plaintiff’s legal title. The following cases fall within this class: Smith v. Bryan, 34 Ga. 53; Bivins v. Bivins, 37 Ga. 346; Taylor v. Cloud, 40 Ga. 288; McArthur v. Matthewson, 67 Ga. 134; Lowe v. Mann, 74 Ga. 387; Saffold v. Scottish Security Co., 98 Ga. 785 (27 S. E. 208); Fulgham v. Pate, 77 Ga. 454; Clayton v. Stetson, 101 Ga. 634 (28 S. E. 983); Ellis v. Farmer, 119 Ga. 238 (46 S. E. 105), and Martin v. Gaissert, 134 Ga. 34 (67 S. E. 536). The cases just cited are the progeny of Smith v. Bryan, supra, in which the ruling was that “A bill in equity to set aside and cancel a deed, on the ground of fraud, is not a ease respecting title to land,” within the meaning of the provision of the constitution fixing the venue in such cases. In that case, on pp. 62-63, the court used this language : “What, in the intendment of the constitution, are ‘ cases respecting titles to land? ’ We understand them to be, cases in which the plaintiff asserts his title to the land in question, and depends for a recovery upon his maintenance of it; or to supply a link in the chain, wanting by reason of accident or other cause. In order to determine whether or not a plaintiff at law or a complainant in equity, who selects his forum upon this clause of the constitution, has made, a case of jurisdiction for the selected court, it is necessary to examine carefully his allegations. What, then, is the gravamen in this case? Is it, at the time of the filing of this bill, the complainant had title to the lands, and that the defendant held possession, or committed waste, or did any act respecting them, without his consent, and in derogation of his title? Not at all. . . His case is not that the title never legally passed from him, nor that it has legally returned to him. His prayer is not that his title, under existing circumstances, may be adjudged good and valid, but that by reason of certain facts, dehors the title, the contract which divested him of it may be annulled, and it restored. The case, then, does not respect title to lands, but is respecting a contract in relation to them, and certain fraudulent practices, which, it is alleged, vitiate that contract.” And in Clayton v. Stetson, 101 Ga., supra, it was said: “If the plaintiff, without resorting to the powers of the superior court as a court of equity and without invoking equitable relief, can, upon her legal title; recover, the suit is well brought in the county where the land lies; but if, in order to vest herself with a legal title upon which she can recover at law, it becomes necessary at first to assert an equity as against the person invested with the legal title, then we conclude that the action should have been brought in the county wherein the defendant resided.” . In the present case, proof of the conveyance to them by deed of the remainder interest (giving to them the right of ultimate enjoyment), and proof of acts of waste on the part of the life-tenant such as to create a forfeiture of the intermediate estate within the intendment of the Civil Code, § 3666, quoted supra, is sufficient to show in the plaintiffs a legal title and make out a prima facie ease for recovery. We are satisfied that where the plaintiff, as in this case, confines himself to the remedy afforded him by the statute, he is seeking only to maintain a title devolving upon him by law as against the defendant’s possession and claim of title under deed, and the suit is one “respecting titles to land,” within the meaning of the constitution. The very gist of the action is: whose legal title is superior with respect to the right of possession in presenti — the defendant claiming the life-estate under deed, and the plaintiff claiming it under forfeiture by virtue of the statute? The object of the action is to gain possession, and the right to possession is determined by an adjudication as to which has the superior legal title. We think the case we are considering measures up to the criterion laid down in Clayton v. Stetson (quoted supra), by which to determine when the action is one respecting titles to land, and that the venue of the suit, as brought, is in Calhoun county. None of the grounds of demurrer were well taken, and the court committed error in sustaining them and dismissing the petition.

Judgment reversed.

All the Justices concur.