Cock v. Callaway

Lumpkin, J. (After stating the foregoing facts.) 1. It was contended that the court was without jurisdiction to entertain motions to dismiss and demurrers to the proceeding in vacation. In certifying the bill of exceptions, the presiding [778] judge added a note to the effect that no objection was made or question raised as to the jurisdiction or power of the court to pass on the motion and demurrers at that time, and that the hearing was had after the first term following the filing of the petition. Prior to 1900 the law required a statutory application for partition to be made to the superior court in term time. By the act of December 18, 1900 (Acts 1900, p. 56), the application was authorized to be made at term time, or to the judges of the court at chambers. Civil Code (1910), § 5358. Section 5360 provides for giving twenty days notice of the intention to apply for partition. Section 5361 provides that, when the application for partition is made, and when due proof is made that the notice required has been given, the court shall examine the petitioner’s title and part or share of the premises to he partitioned, and shall thereupon pass an order directing the clerk to issue the writ of partition, framed according to the nature of the case. This does not require that the judge shall have a trial of the application at once upon its presentation; but he should himself see that some apparent interest in the applicant exists. But after objections have been filed, and the case is ripe for a hearing upon questions of law or fact, it may be determined. In the present ease the motions to dismiss and demurrers were heard in vacation following the first term of court next after the application was presented to the presiding judge. Section 4850, par. 5, of the Civil Code of 1910 authorizes the jildges of the superior courts to hear and determine in vacation all demurrers to petitions for equitable relief, on ten days notice and after service of a copy of the demurrer. Section 4852 provides that the judges of the superior courts have power to hear and determine in vacation as well as in term time, without any order passed in term time, all motions for new trial, certioraries, and all such other matters as they now can hear and determine in term time, and which are not referred to a jury. In the case before us a hearing came on under the application for the writ of partition at the instance of the applicant. Demurrers had been previously filed. On the hearing motions to dismiss were also made. The presiding judge certifies that no objection to hearing the demurrers and motions was made, and no question raised as to passing on them at that time. If there be a question in regard to hearing a demurrer or motion to dismiss an application for the writ of partition in vacation, under the above779 stated facts, the applicant would be held- to have- waived any question of notice as a prerequisite to the hearing in vacation) under the facts of this case. ' 2. Considered as a notice, to each of the holders, of different-, parts of a tract of land, of an intention to apply for a writ of partition against each of such persons, the notice served was- too vague, and indefinite. It might have been sufficient as to persons alleged ■ to have an undivided half interest in the entire tract, in which the person intending to apply claimed to own the other undivided half • interest; but if partitioning between such person and holders of separate parcels was contemplated, the notice was insufficient. 3. In this State two methods of procedure to obtain a partition exist, where they are respectively applicable. The first is the statutory method contained in the Civil Code (1910), § 5358 et seq„ The second is by equitable petition, whenever the remedy at law is insufficient, or peculiar- circumstances render a proceeding in equity more suitable and just. § 5355. Under the statutory proceeding, a notice of intention to make the application is required to be given; the court examines the petitioner’s title and part of share of the premises to be partitioned; partitioners are appointed, and make a partition in kind, having a survey made; or a sale may be ordered where a fair and equitable division can not be made by metes and bounds.. Provision is made for filing objections, and for hearing and determining the application. This does not take the place of a suit in ejectment against a person holding the land, not-as a tenant in common or under the alleged tenant in common, but-who is shown to have, acquired possession under an antecedent life-tenant, who has died, and to claim adversely. Here all of the persons in possession of different parts of the tract of land in dispute were alleged to claim under one of the life-tenants created by the will, without stating under which life-tenant they respectively claimed. The petitioner’s right ’to have possession of any of the land rested upon an allegation that the wife of the testator and Garnett A. Sneed and James Benton Cock were each life-tenants, while the petitioner was a remainderman as to a one-half interest upon the death of the last-named tenant for life. Thus, if the allegation means that 'any particular holder or holders claimed under James Benton Cock, their holding would not be as tenants [780] in common with the remainderman. In such event, the remedy he would need against such holders would be one to recover possession of his interest in the land, rather than to partition with them. If any holder claimed under both Garnett A. Sneed and James Bern ton Cock, and Garnett A. Sneed were still in life, there might perhaps be a case for recovery or partition as to a half interest in that particular parcel. It will readily be seen that the status of one in possession of a parcel of the land might vary according as he claimed under the widow of the testator, who was the first life-tenant, or under both of the subsequent life-tenants, or under one of them. It appears that there were a number of persons holding different parts of the tract or tracts, and the vague allegation that *each of them claims “under one of the life-tenants in said will” shows no case for partitioning under the statute as against each of such possessors. Moreover, the descriptions of the parcels held by some of these persons is quite indefinite. By the Civil Code (1910), § 5368, it is declared, that, “In any extraordinary case not covered by the foregoing provisions, the court may frame its proceeding and order so as to meet the exigency of the case without forcing the party into equity; and the court may deny a sale or partition altogether, if it is manifest that the interest of each party will not be fully protected.” This 'allows certain equities between tenants in common to be taken into consideration in making a partition, and doubtless would authorize one holding a perfect equity to have a partition without first proceeding by equitable petition. But, without undertaking to define the full extent of that section, it is clear that it was not intended to make the statutory proceeding a substitute in all cases for partition by a court with equitable cognizance, or to deal with all the rights which might be asserted in every ease by an equitable proceeding; since the code preserves the right of equitable partition, whenever the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, as above indicated. In the ease before us, there was 'an effort to have a statutory partition in kind of several land lots as against Garnett A. Sneed, if alive, his wife and children, if any, or his lineal heirs at law, if any. It was alleged that the petitioner did not know whether Sneed was, alive or dead, or whether, if dead, he was survived by a wife, or a child, or children, or whether there is such a widow or child [781] or their lineal heirs at law. With this cotenant or cotenants, if any, the petitioner desired to have partition of 1215 acres of land. In the petition it was alleged that Garnett A. Sneed “left this section for parts unknown to petitioner, some thirty or more years ago.” These hypothetical or conditional cotenants were served by publication addressed in the same uncertain way. What effort was made to ascertain the facts does not appear. It is clear that the petitioner did not seek, and could not have, a statutory partition in kind for the entire 1215 acres with each of the persons who held separate parts of such land. His counsel seemed to realize the need for something beyond statutory partition, and in the nature of equitable relief, as his petition included prayers for recovery of a one-half interest in the property, for accounting by each of the persons in possession for one half of the rents, issues, and profits of the lands from September 12, 1912, for judgments against them respectively for the amounts found to be due, and for general relief. Nevertheless there was no prayer for process, the case was not brought to a term of court as an equitable petition, no process was issued, and none was served. The petition could not, therefore, be upheld ás a regular partitioning in equity, without dealing with the sufficiency of its allegation. The requirement in regard to the service of notice of a statutory proceeding to partition land is extremely loose. -The code does not declare that there must be a petition filed, followed by service by an officer, with due entry thereof, so as preserve a permanent official record, but that the party applying for the writ of partition shall give to the other parties concerned at least twenty days notice of his intention to make application, and that the court may proceed in the prescribed manner when due proof is made that the required notice has been given. This may be intended for speed (Lochrane v. Equitable Loan & Security Co., 122 Ga. 433, 437, 438, 50 S. E. 372); but it appears to be a rather loose way to bring a man into court to litigate about land. It will not take the place of process and regular service in an equitable petition seeking accountings, judgments, and general relief against the numerous parties in possession of different parts of the land involved. 4. The demurrers contained numerous grounds, among them being that the allegations “in the bill” set forth no cause of action. We do not think that this petition was a bill or suit on the equity [782] side of the court. But sustaining the demurrer should not have the effect of holding that the.petitioner has no title. This should be left undetermined. Direction is accordingly given that the judgment be so amended as to declare that it does not adjudicate the question of whether or not the petitioner in the proceedings to partition has a title to the lands or any interest therein. This direction is given to avoid confusion, on account of the peculiar character of the proceeding and its termination. Judgment affirmed, with direction. All the Justices concur.