Turner v. Jones

27 Ga. 22

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

Was the Court right in sustaining the demurrer ?

The grounds of the demurrer were two. 1st. That there was an adequate remedy at law. 2d. That Joiner and Spicer were improperly joined with the other defendants.

[1.] The bill stales facts which make out a right in the plaintiff, to the relief he asks for; and it says, that he has no means of establishing these facts, except a discovery from the defendants. If this allegation be true, there is no adequate remedy at law — the discovery-act left out of the question, as by its own terms, it has to be. And the bill being demurred to, we have to take the allegation as true.

The first ground of the demurrer, then, was not good.

[2.] Was the second, good ? That was, a misjoinder of parties; that Joiner and Spicer were improper parlies defendants.

First, as to Joiner.

The bill alleges, that the land was sold under a fi. fa. against the drawer, Jones, and bought by Hodges; and, that the deed made by the Sheriff, to Hodges, was burned. That Hodges sold the land to Turner, the plaintiff, — that after-wards, Joiner, thinking to take advantage of the destruction of the Sheriff's deed, also bought the land, and put Spicer in possession of it as his tenant.

If these allegations are true, Turner is eutitled to have the destroyed deed established, and also, to recover possession of the land with the rents. And these things are what the bil prays for. It is, therefore, highly to the interest of Joiner, to show, that they are not true. But this he cannot do, without being a party to the bill. lie, therefore, ought to be a party to the bill. 2 Danl. Ch. Pr. 373.

Again, Hodges having had his deed burnt, and not being able to prove the deed, and the other facts of his case, without a discovery, has the right to go into equity against Joiner to get jjossession of the land and the rents. Now, suppose we admit it to bo true, that Joiner and Spicer ought not to be joined with Hodges, and the other defendants, yet it would be for the plaintiff\ to say which of these two sets of defendants, he would strike from his bill, and will Joiner think it to his interest, that himself and Spicer should be retained, and Hodges and the other defendants rejected? We hardly suppose that he will: what he wants is, that he and Spicer shall be dismissed from the bill, but whether he will get that or not, even if he is'right in his view of the law, will depend on the plaintiff.

For aught that we can see, Joiner was a proper party to the bill.

And if it be true, that Joiner was a proper party to the bill, it must be true that Spicer was, for Spicer was but the tenant of Joiner.

We think, then, that the second ground of the demurrer, was like the first, invalid. Consequently, we think the Court below erred in sustaining the demurrer.

Judgment reversed.