Southern Title Guarantee Co. v. Lawshe

Lumpkin, J. From the report of facts it will be seen at a glance that the original petition was equitable in its nature. The sole purpose was to cancel certain deeds as a cloud on the title of the plaintiff, to enjoin a sale under a power contained in a deed made to secure a debt, and for general relief. If it set out any cause of action at all, it was purely equitable in character. The mere allegation that the defendants “had no valid title to said land or lien thereon,” and the prayer for process, did not make the case an action of ejectment. It appeared on the face of the petition that the substantial defendants resided in another county, and that there was no jurisdiction to try the case in the county where it was brought. Civil Code (1910), § 6540. The point was raised by demurrer and by plea to the jurisdiction. The defendants also filed an answer, in which it was stated that it was filed without waiving service, or their demurrer or plea to the jurisdiction. Both the plea and answer were verified on May 12, 1909. The entry of filing on the latter was dated June 15, 1910, “by order of the court.” The entry on the former was dáted June 21. It was urged that this waived objection to the jurisdiction. If so as to the plea, the point was also made by the demurrer, which appears [481] to have been urged before the answer was filed.. Three amendments to the petition were filed, in the effort to confer jurisdiction on the court. By the first, the plaintiff alleged that she claimed under a certain chain of deeds. By the second, the plaintiff attached an abstract of title “ to the land sued for,” and alleged that “the defendants claim title to said lands, although defendants have no valid title thereto or lien thereon.” It was also prayed that “judgment be rendered adjudicating the title to the above-described lands to be in the plaintiff.” By the third amendment the plaintiff struck from the petition the allegations as to the chain of deeds terminating in that held by the defendant corporation, and alleged that the defendants had no valid chain of title to the lots, but claimed “ under certain alleged pretended deeds which are spurious and invalid and are clouds upon the plaintiff’s title.” . It is contended that the action was one of ejectment or its statutory equivalent; and if not so originally, that it became so after the amendments were made. Primarily an action of ejectment was to recover land from one who held it wrongfully. We need not discuss what character or extent of ouster or adverse possession will authorize the bringing of an action of ejectment. Nor is it necessary to decide whether a purely equitable action can be brought in a county where there is no jurisdiction, and be amended into an action of complaint for land which could be properly brought here. We know of no law authorizing a plaintiff who alleges that “she holds certain lands” under certain deeds to bring a suit in a county where the land lies, against a person who lives in another county, and who has no possession of the land and has in ho way ousted the plaintiff, and confer jurisdiction on the court of the former county by alleging that the defendant holds a deed to secure a debt, that his claim is not valid, and the plaintiff has a title which he would like to have declared good. This is not the meaning of the constitutional provision fixing the venue of actions respecting titles to land in the county where the land lies. It -is said that the defendant corporation is proceeding to exercise the power of sale contained in the security deed, and is in “ constructive possession ” of the land. A mere proceeding to exercise a power of sale contained in a deed to secure a debt' is not [482] alone such an ouster or adverse possession of the land as furnishes a basis for an action of ejectment. If the petition as amended should be treated as in the nature of-an action of ejectment, it was fatally defective. The rule that in ejectment lease, entry, and ouster must be admitted, which is invoked in behalf of the defendant in error, applies where there is an allegation of lease, entry, and ouster, or what is considered equivalent thereto, in a statutory form of action to recover land. It can hardly be contended that an action of ejectment would lie with no allegation of ouster, or that.tile consent rule would supply such a failure of allegation. And the rule that where there is a right there is a remedy, and the court having jurisdiction of the case will, if necessary, frame a remedy, which is also urged, can not help the defendant in error; because here the court has no jurisdiction of the case. It should have been dismissed accordingly. Judgment reversed. All the Justices concur, except Hill, J., not presiding.