Dugas v. Hammond

Evans, P. J. 1-4. Emily C. Hammond brought complaint for land against Lucretia R. Dugas. The petition was framed after the .statutory form of complaint for land, though not in its exact form. The pleader separated the petition into paragraphs, which' [88] were consecutively numbered. The defendant failed to answer the paragraph which asserted that “petitioner claims, title to said land under a deed and under the' abstract of title hereto annexed marked Exhibit A.” Exhibit A was but an abstract of four deeds, the first executed in 1880. The plaintiff ■ was the grantee in the last deed. No ¡Dossession in any of the grantors or grantees was alleged. The court ruled that the failure of the defendant to respond to this paragraph was an admission of title in the plaintiff, and relieved her from showing -title to the premises in dispute. The case was submitted to the court, without the intervention of a jury, who rendered a judgment in favor of the plaintiff, which on motion for a new trial the judge refused to disturb. We think the court erred in holding that the plaintiff was relieved of the necessity of proving her title to the land, by the defendant’s failure to deny the paragraph of the petition in which the plaintiff alleged her title to the land in controversy. The judiciary act of 1799 prescribed that all suits in the superior court should be begun by a jDetition addressed to the court, signed by tho plaintiff or his counsel, plainty, fully, and distinctly setting forth the plaintiff’s cause of action. In 1847 the legislature prescribed certain forms of action, including a form of a petition for the recovery of land. See Code of 1882, §3389. This form was as follows: “The petition of A. B. showeth that C. D., of said county, is in possession of a certain tract of land in said county (here describe the land), to which your petitioner claims title; that the said C. D. has received the-profits of said land since, the-- day of-----, 18--, of the yearly value of--dollars, and refuses to deliver said land to your petitioner, or to pay him the profits thereof; wherefore,” 'etc. The legislative intent was not to abolish the distinctive features of good pleading, but to authorize a simplified and -concise form of a petition .applicable to certain actions. These forms were permissive, and not obligatory. Hilliard v. Connelly, 7 Ga. 172. While not intending to repeal the form of statement of the cause of action according to the rules of the common law, the statutory forms were allowable as a substitute. It could hardly have been the legislative purpose to devise a substantially different form of pleading so as to require the averment'of certain facts, if the petition was framed after the common-law standard, and excuse the averment of the same facts if the petition was in the statutory [89] form. Such a system would have been confusing, and would have led to absurdities. On the other hand, the legislative object in prescribing simpler forms of petition must have been that the allegations of the various statutory forms should be regarded as containing all the substantial and necessary averments of the common-law form for the same kind of action. See Civil Code, §4934. At common law the form of action to recover land was fictitious; yet that fiction „was based on the assumption that the lessor of the fictitious John Doe had the superior right to the possession of the land. This superior right was based either on title or prior possession. The statutory form of action to recover land contains no specific statement that the plaintiff has title to the land, but the words “claims title” should be given that significance. Unless this effect & given to these words, we would be saying that a form of petition to recover land, authorized by law, is sufficient, although it contains no assertion of the plaintiff’s right to the land' which he seeks fro recover. These forms ars remarkable for their brevity and the repudiation of technical expression. We should not gauge the manifest effort to discard technical nomenclature by the standards from which the effort aims to be disenthralled. We should rather interpret the language employed according to the common understanding of the words; that is, consider the words in their eollo•quial, and not their technical sense.- In common speech a person ,says he claims the land to which he has title, meaning by his claim •of title to declare his ownership. The Standard Dictionary defines the verb “claim” as, “To demand on the ground of- right; do affirm to be one’s own, or one’s due; lay claim to; assert a right to or ownership of; as, to claim a title.” It was held in a California case that “An allegation in a complaint in ejectment, that the plaintiff, on a day named, ‘was possessed of’ certain lands therein described, ‘which skid premises the said plaintiff claims In fee simple absolute,’ is an allegation of title in the plaintiff to the premises in fee simple absolute.” Marshall v. Shafter, 32 Cal. 176. A conveyance of the grantor’s claim to land passes all the title he holds. We think that the expression in the pleading form means an assertion of title; it is equivalent to an allegation that the plaintiff has title to the land. Given this construction; the pleading act-of 1893 (Civil Code, §4961), requiring the plaintiff to state his .cause of action in orderly paragraphs eonsecu [90] tively numbered, does not repeal this form of petition, but the statutory form is adaptable to the ‘pleading act by a division inte separate paragraphs. Under the statutory form of action the abstract of title is not a part of the petition. Yonn v. Pittman, 82 Ga. 637 (9 S. E. 667). The plaintiff may make it a ¡Dart thereof by incorporating it in the body of his petition, or by making his exhibit which contains the abstract a part of his petition by reference or otherwise.' When, he does so, and the allegation is that he claims title to the land under the abstract of title annexed to his petition, such allegation, will not be treated as a simple allegation of title, but as an allegation that his title is limited to that defined in his abstract. “Where title is specifically as well as generally alleged, the specific-allegations control and qualify those that are general.” 21 Enc. Pl. & Pr. 725. In the case at bar the plaintiff alleges, as a distinct paragraph that she “claims title to said land, under a deed, and under the abstract of title hereto annexed, marked Exhibit A.” The exhibit purports to be an abstract of four deeds, the first a deed from Acy Evans to Ellery M. Brayton, dated in 1880 j then a deed from Ellery M. Brayton to Helen C. Brayton; then a deed from Helen C. Brayton to Henry H. Gumming; and lastly a deed from Henry H. Gumming to plaintiff, executed in 1902. There was no response to this paragraph, and under the pleading; act of 1893 the court ruled that defendant’s failure to answer this, paragraph was an admission that the plaintiff had prima facietitle to the land. The failure to answer can have no further effect than a direct admission; and what is that admission ? That the plaintiff has title beginning* with a conveyance in 1880, but under which no possession is alleged. In other words, that his title originates from a person who is not alleged to have had possession, or either a paper or prescriptive title. Suppose that the plaintiff had denied this paragraph, the mere introduction in evidence of the four deeds, an abstract of which was annexed to the petition, would, not have made a prima facie case. Therefore the failure to deny this paragraph could not have the effect of admitting that the plaintiff had title. It was but an admission that the plaintiff had the title which she alleged, and this was insufficient to cast the burden .on the defendant to show title. The court ruled otherwise, and we think this ruling was erroneous. . [91] It is unnecessary to notice the various assignments of error set out in the motion for new trial, and in the cross-bill, for the reason that the court tried the case on the assumption that the plaintiff was not required to submit proof of her title. We are unable to say whether the plaintiff will be able to make out a prima facie case; and until that is done it is immaterial as tó what was the character of the, defendant’s title. The rule in actions for the recovery of land is that the plaintiff recovers on the strength of his own title, and not on the weakness of the title of his adversary. Judgment reversed. All the Justices concur, except Ilolden, J., who did not preside.