Hutchings v. Merritt

141 S.E. 652, 165 Ga. 650, 1928 Ga. LEXIS 38

Opinion

Atkinson, J.

1. A plaintiff in ejectment can not engraft upon the original petition an amendment in the nature of a petition in equity, praying for a judgment declaring a deed from himself to the defendant, absolute in form, to be a security for debt only, and for an equitable accounting between the' parties, etc., without alleging that the defendant is a resident of the county in which the suit is pending or a non-resident of the State. Civil Code (1910), §§ 5527, 6540; Johnson v. Griffin, 80 Ga. 551 (7 S. E. 94) ; Clayton v. Stetson, 101 Ga. 634 (28 S. E. 983); Vizard v. Moody, 115 Ga. 491 (41 S. E. 997); Townsend v. Brinson, 117 Ga. 375 (43 S. E. 748). Powell on Actions for Land, 150, § 126.

2. Under application of the principle stated in the preceding note, the judge did not err in striking the amendment to the petition.

3. The amendment having been stricken, it was not erroneous to reject evidence offered to sustain it.

4. The defendant having shown an absolute deed to the laud from the plaintiff to the defendant, the judge did not err in directing a verdict for the defendant. Judgment affirmed.

All the Justices concur.