Carnes v. Pittman

74 S.E.2d 852, 209 Ga. 639, 1953 Ga. LEXIS 335

• Court: Supreme Court of Georgia
• Decided: February 24, 1953
• Docket: 18106
• Status: Published

Opinions

Head, Justice.

Richard M. Carnes filed a petition in Bartow Superior Court to register the title to eighteen land lots, claiming possession under fee-simple title as shown by an attached abstract of title. C. C. Pittman filed an answer, asserting that he held under tax deeds for the years 1924 and 1925, and under a quitclaim deed. The case was referred to an examiner, and evidence was submitted by both parties. The petitioner filed exceptions of law and fact to the report of the examiner, which was adverse to his claims. The defendant also filed exceptions of law relating to the admission of testimony that had been offered in a former land-registration suit between the petitioner and the defendant. The court in separate orders sustained a motion of the defendant to disallow and dismiss the petitioner’s exceptions of law and fact, decreed title to the lots to be in the defendant and that title be registered in his name, and sustained the defendant’s exceptions of law. The petitioner excepted to each of these rulings. Held:

1. There is no merit in the motion to dismiss the bill of exceptions for failure to perfect service. On the same day that the bill of exceptions was certified, the defendant in error signed an acknowledgment of service as follows: “Service of the above and foregoing Bill of Exceptions acknowledged. Notice waived. Copy received.” This constituted an express acknowledgment of service of the bill of exceptions as provided by the Code, § 6-911.

(a) The exceptions to antecedent findings of the examiner set forth the reasons relied upon to have those findings set aside, and the alleged , errors in such antecedent rulings, if erroneous, entered into the subsequent final judgment decreeing title in the defendant. Accordingly, general assignments of error to subsequent rulings were sufficient. Gaither v. Gaither, 206 Ga. 808 (1) (58 S. E. 2d, 834), and cases cited.

(b) The final report of the examiner containing the evidence upon which he made his findings, and no additional evidence having been introduced at the hearing before the trial judge, the bill of exceptions was not subject to dismissal on the grounds that (1) the plaintiff in error nowhere in his bill of exceptions specified a complete brief of the evidence before the trial judge, or (2) there was no approved brief of evidence as required by the Code, § 6-802.

2. A principal contention on the trial before the examiner was that the petitioner had paid all taxes on the land in question, and that the tax deeds under which the defendant claimed were therefore void. See, in this connection, Rish v. Ivey, 76 Ga. 738 (2); Nalley v. McManus, 135 Ga. 713 (2) (70 S. E. 255). Assuming but not deciding that the petitioner’s evidence failed to show payment of taxes, the defendant would not be relieved from establishing his title, since every applicant for land registration must stand on the strength of his own title, and not on the weakness of his adversary’s title. Thomasson v. Coleman, 176 Ga. 375 (1) (167 S. E. 879). The examiner having found, as a matter of fact, that the character of possession of both the plaintiff and the defendant fell short of the requirements of the Code, § 85-401 et seq., a finding that title was in the defendant was unauthorized. Accordingly, the trial judge erred in sustaining a motion of the defendant to disallow and dismiss the petitioner’s exceptions of law and fact, and further rulings became nugatory.

No. 18106. Argued January 14, 1953 Decided February 24, 1953— Rehearing denied March 10, 1953. J. Sidney Lanier, for plaintiff in error. C. C. Pittman, R. C. Pittman, W. B. Greene and Percy A. Bray, contra.

Judgment reversed,.

All the Justices concur, except Atkinson, P. J., not participating.