Taylor v. Mentone Hotel & Realty Co.

Gilbert, J. As shown by the statement of facts, the defendant on the trial tendered what he denominated an amendment to his answer. The amendment amounts to a plea in abatement. The defendant alleged that the plaintiff had by “warranty deed” conveyed to named individuals all of its right, title, and interest in and to the lands described in the petition, and no longer had any right, title, or interest therein. The court disallowed the amendment, and this judgment constitutes the first assignment of error. It is conceded by plaintiff in error that if this were a suit in ejectment, the suit would not abate. See Wood v. McGuire, 21 Ga. 576. In Gate City Mills v. Cherokee Mills, 128 Ga. 170, at page 174 (57 S. E. 320), other instances are enumerated in which suits may be continued after the party who instituted suit has parted with his interest in the subject-matter of the suit. Compare Suwannee Turpentine Co. v. Baxter, 109 Ga. 597, 600 (35 S. E. 142). It is insisted, however, that in an equitable proceeding quia timet or to remove a cloud upon title the rule is different; that where one has parted with his right and title to lands, he is no longer concerned with a cloud on the title; that he possesses no interest which entitles him to continue as a party to the suit; and the following authorities are cited: 32 Cyc. 1375, § 4(III); Oberon Land Co. v. Dunn, 60 N. J. Eq. 280 (47 Atl. 60); 1 C. J. 143, § 221. We do not think these authorities support the contention. The text in 32 Cyc. was doubtless taken from [360] the Oberon Land Co. case, decided by the New Jersey Chancery Court; and, as stated in that ease, both the complainant and the defendant had parted with all right, title, and interest in the sub- • ject-matter of the suit, and there was no one to be bound by the judgment, and therefore no suit. Plaintiff in error also cites the following for the contention that the rule as to abatement in a case to remove a cloud on title differs from that in ejectment cases: Weyman v. Atlanta, 122 Ga. 539 (50 S. E. 492); McMullen v. Cooper, 125 Ga. 435 (54 S. E. 97); Crawford v. Crawford, 143 Ga. 310 (85 S. E. 192). In the-Weyman case this court held that the petitioners failed to set up a case for cancellation of a cloud upon a title, because their allegations showed that they were not in possession. In the McMullen case the suit failed for the same reason.. In the Crawford case the suit failed because it appeared that the plaintiff had no title to the property, and that his only relation thereto was the possession of a mere “squatter.” In the present case the petitioner alleges title and possession. Corpus Juris states the common-law rule to the effect that where one parts with the title in the subject-matter of the suit, the action abates. The same rule is stated in other treatises on the subject. It has been so ruled by this court. Gate City Mills v. Cherokee Mills, supra. All of the authorities seem to agree,however, that the common-law rule above stated has been abrogated in most of the States by statute, and it is now the rule that the termination or transfer of the plaintiff’s interest in the subject-matter of the suit after commencement thereof furnishes no ground for abatement. 1 C. J. 143, § 222. This is also stated by this court in the case next above cited. In Georgia there is no statute governing this subject. In the Gate City Mills case, supra, it was held that the court properly allowed an amendment by the plaintiff praying that the suit proceed with the case in the name of the original plaintiff for the use of the vendee. This ruling would seem to indicate that the transfer did not render the suit a nullity nor did it abate the suit. It follows from that ruling that the petitioners in this case could have amended so that the suit might proceed for the use of plaintiff’s vendees, if a conveyance had been made. But the petitioners did not offer such an amendment. The issue was raised by the defendant. The sufficiency of the plea must be judged by the allegations made therein, one of which is [361] that the plaintiff “by warranty deed” conveyed its interest to named persons. This allegation shows that the plaintiff is still interested in removing the cloud upon its title, in order that it may make good the terms of its conveyance. It is not necessary to decide whether in all cases where there has been a transfer of title the suit should abate. Our decision here extends no further than the facts of this case. Since the plaintiff is interested in seeing that its vendees are not disturbed in possession of the property conveyed, the court did not err in refusing to allow the amendment upon which the defendant sought the abatement of the suit. “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto.” Civil Code (1910), § 5926. The evidence in this case authorized the direction of a verdict for the plaintiff on the ground that the levy, as a matter of law, was excessive. Judgment affirmed. All the Justices concur.