A plaintiff in ejectment must recover on the strength of his own title and not on the weakness of the defendant's title. Where both parties claim under a common grantor, it is not necessary to show title back of such common grantor.
(Civil Code 1895, § 5004; Civil Code 1910, § 5582; Code 1933, § 33-101.)
Law reviews.- For article discussing origin and construction of Georgia provision concerning ejectment, see 14 Ga. L. Rev. 239 (1980). For comment on Brooks v. Williams, 227 Ga. 59, 178 S.E.2d 880 (1970), see 23 Mercer L. Rev. 399 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
History of section.
- The first sentence of O.C.G.A. § 44-11-1 is derived from the decisions in Harris v. Cannon, 6 Ga. 382 (1849) and Hitch v. Robinson, 73 Ga. 140 (1884).
The second sentence of O.C.G.A. § 44-11-1 is practically a rule of estoppel or admission, and is derived from the common-law decisions in the cases of Wood v. Milly McGuire's Children, 17 Ga. 303 (1855); Harrison v. Hatcher, 44 Ga. 638 (1872); Hanson v. Crawley, 51 Ga. 528 (1874); Werner v. Footman, 54 Ga. 128 (1875); Greenfield v. McIntyre, 112 Ga. 691, 38 S.E. 44 (1901); Holder v. Scarborough, 119 Ga. 256, 46 S.E. 93 (1903); Garbutt Lumber Co. v. Wall, 126 Ga. 172, 54 S.E. 944 (1906); Deen v. Williams, 128 Ga. 265, 57 S.E. 427 (1907); Gaskins v. Gray Lumber Co., 6 Ga. App. 167, 64 S.E. 714 (1909); Sinclair v. Friedlander, 197 Ga. 797, 30 S.E.2d 398 (1944).
Purpose of ejectment is to evict one from realty who wrongfully withholds possession from the person legally entitled thereto. Douglas v. Vourtsanis, 203 Ga. 64, 45 S.E.2d 203 (1947).
O.C.G.A. § 44-11-1 is qualified by O.C.G.A. § 44-7-9. Ingold, Inc. v. Adair, 247 Ga. 155, 274 S.E.2d 560 (1981).
Academic principle of section is rule of evidence.
- O.C.G.A. § 44-11-1 requirement that a plaintiff in ejectment must recover because of plaintiff's own title and not the defendant's defective title is a rule of evidence. Jackson v. Sanders, 199 Ga. 222, 33 S.E.2d 711 (1945).
Plaintiff may not eject tenant in possession on basis of vague lease if vagueness cured.
- A plaintiff cannot rely on vagueness of the legal description to eject a tenant when at the time the plaintiff in ejectment acquired the property, the tenant was in possession under a recorded lease and the vagueness had been cured so that the description was adequate to give the plaintiff notice. Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980).
No ejectment action where landlord-tenant relationship.
- Where defendant contended that no landlord-tenant relationship was shown to exist between the parties and that the action consequently should have been for ejectment, pursuant to O.C.G.A. § 44-11-1, rather than for possession, pursuant to O.C.G.A. § 44-7-50, but defendant conceded that it had been defendant's intention to include the house in the property conveyed by security deed and the trial court was authorized to conclude from the evidence that the house was so included, it was held that when the defendant defaulted on the debt and the security deed was foreclosed upon, the relationship between the parties became that of landlord and tenant at sufferance. West v. VA, 182 Ga. App. 767, 357 S.E.2d 121 (1987).
Breach of lease contract not case respecting title to land.
- Landlord's complaint for ejectment, alleging that landlord has a presently enforceable lease contract with tenant and that tenant has breached this contract so as to entitle landlord to possession, does not allege a case respecting title to land under Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see, now, Ga. Const. 1983, Art. VI, Sec. IV, Para. I), for purposes of subject matter jurisdictional requirements. Ingold, Inc. v. Adair, 247 Ga. 155, 274 S.E.2d 560 (1981).
Landlord may eject on basis of lease.
- By virtue of the qualification to O.C.G.A. § 44-11-1 that is found in O.C.G.A. § 44-7-9, a landlord is authorized to file a complaint for the ejectment of a tenant alleging, not that the landlord has a presently enforceable legal title to the land, but that the landlord has a presently enforceable lease contract with the tenant, and that the tenant has breached the contract as to entitle the landlord to possession. The landlord is entitled to recover upon the admission of title in the landlord, which grows out of the relation of landlord and tenant, if according to the law applicable to the facts of the case, that relation did exist. Ingold, Inc. v. Adair, 247 Ga. 155, 274 S.E.2d 560 (1981).
Until after default by the grantor, grantee in security deed has no right of entry such as will authorize grantee to maintain an action against the grantor for recovery of the land, with the accompanying right to apply the rents and profits until they are sufficient to discharge the debt. Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938).
Security deed holder may not eject if debt paid.
- While the holder of a security deed to land may sue in ejectment to recover possession of the property, where the debt is not paid at maturity, the holder cannot recover solely upon such a deed where the debt has been paid in full. This proposition will hold true regardless of whether payment of the debt without the cancellation of the security deed or a reconveyance of the property will operate to divest the legal title and cause it to revert to the debtor. Even if the legal title may in such a case be considered as remaining in the holder of the security deed, it is not a title accompanied by the right of possession, and for this reason will not authorize a recovery in ejectment. Capps v. Smith, 175 Ga. 795, 166 S.E. 234 (1932).
Action against county.
- A county is liable to suit in an action to recover land owned by the plaintiffs and which has been taken possession of by the county, where it refuses on demand to deliver possession. Lynch v. Harris County, 188 Ga. 651, 4 S.E.2d 573 (1939).
Trespasser may not take land by paying damages.
- In no event should a landowner be obliged to submit to invasion or be compelled to part with property, or any portion thereof, upon the mere payment of damages by a trespasser. Randolph v. Merchants & Mechanics Banking & Loan Co., 181 Ga. 671, 183 S.E. 801 (1936).
Action of ejectment will lie to recover mine or mineral interests in lands, to which the plaintiff has title, though another owns the surface, and although the plaintiff has never been in possession. Hale v. Turner, 183 Ga. 593, 189 S.E. 10 (1936).
Ejectment action will establish boundaries in cities.
- As the processioning statutes do not have application to a determination of the boundaries of coterminous lots located within the corporate limits of cities and towns, an action of ejectment for recovery of land in a city taken over by an encroachment of an adjacent lot owner constitutes a proper remedy for establishment of the true dividing line in such a dispute. Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937).
Judge may charge boundary question where city plaintiff shows prior possession.
- Where plaintiff in ejectment against the owner of adjacent city lot shows prior possession under a color of title of the lot occupied by plaintiff, and defendant adjacent lot owner shows no superior title to the lot thus occupied by the plaintiff, and where the only conflict in the evidence is whether the property sued for lies within the boundaries of the plaintiff's lot or those of the adjacent lot of the defendant, the essential question in determining title to the land in dispute concerns boundary only, and it is not error to charge the jury that the question is one of fact as to where the line is between the two parties. Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937).
No recovery by joint plaintiffs if one unentitled.
- Where a joint action for land is brought by several persons and the evidence shows that one of them is not entitled to recover, there can be no recovery at all. The rule in such case is the same whether the action is in the statutory or fictitious form. Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943).
Directed verdict for joint plaintiffs wrong if one unentitled.
- In an action in ejectment, where the plaintiffs sued jointly as heirs at law of a certain person, directed verdict for plaintiffs was erroneous in that there was no evidence to show that one of the plaintiffs was entitled to recover any interest in the land upon such theory. Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943).
Landowners' trespass and negligence suit.
- Trial court properly denied a neighbor's motion for summary judgment and the appellate court reversed the denial of the cross-motion for summary judgment filed by the adjoining landowners in a trespass and negligence suit, because the neighbor purchased property without first obtaining a survey and the adjoining landowners' home was already encroaching upon the neighbor's property by two feet at the time of the purchase; the adjoining landowners were not liable for their predecessor's conduct in building the house and a fence across the property line of the neighbor's predecessor in title, in the absence of evidence that their predecessor was acting as their agent, and were, therefore, entitled to summary judgment. Navajo Constr., Inc. v. Brigham, 271 Ga. App. 128, 608 S.E.2d 732 (2004).
Cited in Conway v. Caswell, 121 Ga. 254, 48 S.E. 956, 2 Ann. Cas. 269 (1904); Gable v. Gable, 130 Ga. 689, 61 S.E. 595 (1908); Walton v. Sikes, 165 Ga. 422, 141 S.E. 188 (1927); Gormley v. Brazil, 180 Ga. 383, 179 S.E. 81 (1935); Patrick v. Sheppard, 182 Ga. 788, 187 S.E. 379 (1936); Horton v. Wilkerson, 192 Ga. 508, 16 S.E.2d 8 (1941); Yerbey v. Chandler, 194 Ga. 263, 21 S.E.2d 636 (1942); Tapley v. Claxton, 195 Ga. 61, 23 S.E.2d 426 (1942); Townsend v. Rechsteiner, 195 Ga. 618, 24 S.E.2d 776 (1943); Heath v. Miller, 197 Ga. 443, 29 S.E.2d 416 (1944); Rose v. Crane Heating Co., 198 Ga. 295, 31 S.E.2d 717 (1944); McEntyre v. Burns, 81 Ga. App. 239, 58 S.E.2d 442 (1950); Green v. Stafford, 206 Ga. 836, 59 S.E.2d 244 (1950); O'Connor v. Edmonds, 208 Ga. 42, 64 S.E.2d 893 (1951); Everett v. Culberson, 215 Ga. 577, 111 S.E.2d 367 (1959); Franks v. Sparks, 217 Ga. 117, 121 S.E.2d 27 (1961); Clements v. Elder, 221 Ga. 438, 145 S.E.2d 246 (1965); Filsoof v. West, 235 Ga. 818, 221 S.E.2d 811 (1976); Beavers v. Weatherly, 250 Ga. 546, 299 S.E.2d 730 (1983); Allgood Farm, LLC v. Johnson, 275 Ga. 297, 565 S.E.2d 471 (2002).
Proof of Title
Equity requires plaintiff recover on strength of own title.
- The rule that a plaintiff must recover upon the strength of plaintiff's own title, and not upon the weakness of the defendant's, has been applied to equity suits involving title to land as well as to common-law ejectment. Bright v. Cudahy Packing Co., 192 Ga. 584, 15 S.E.2d 880 (1941).
Except recovery from intruder permissible based on prior possession only.
- While under O.C.G.A. § 44-11-1 a plaintiff in ejectment must recover on the strength of plaintiff's own title, and not on the weakness of the defendant's title, under O.C.G.A. § 44-11-2 plaintiff may recover upon prior possession alone, against one who subsequently acquires possession of the land by mere entry and without any lawful right whatever. Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937).
Perfect equity is the equivalent of legal title and is a good defense to an action in ejectment brought by one who took with notice of such equity. Bank of Arlington v. Sasser, 182 Ga. 474, 185 S.E. 826 (1936).
Constructive possession sufficient if under color of title.
- Where reliance is had upon possession alone, and not upon possession under color of title, the possession must be actual; but where the possession is accompanied by color of title, the possession relied upon may be either actual or constructive. Smith v. Bailey, 183 Ga. 869, 189 S.E. 905 (1937).
Plaintiff must hold true title.
- Broadly speaking, O.C.G.A. § 44-11-1 means that the plaintiff must be the holder of the true title, a title good against the whole world, but as limited by exceptions. It means that the plaintiff must either have the true title, or else stand in such legal relation to the defendant that the latter is estopped from denying title. Bridges v. McGalliard, 207 Ga. 422, 61 S.E.2d 922 (1950).
Plaintiff must recover on title had at start of action.
- When an action is brought for the recovery of land, either under the common-law form or under the Code, the plaintiff must recover, if at all, upon the state of plaintiff's title as it existed at the commencement of the action. Evidence of any after-acquired title is wholly inadmissible and ineffective to prove the required title. Durham v. Crawford, 196 Ga. 381, 26 S.E.2d 778 (1943).
Tenders pending action insufficient.
- Since the right to recover in ejectment land sold under a tax sale depends upon the plaintiff's title where an action is brought, without benefit from any subsequently acquired title, two alleged tenders made during pendency of the action were ineffective. Durham v. Crawford, 196 Ga. 381, 26 S.E.2d 778 (1943).
Title must be accompanied by right of possession.
- Where the plaintiff's title to the land is controverted, plaintiff must show not only that plaintiff had the legal title to the property in dispute at the commencement of the action, but that such legal title was accompanied by the right of possession. Capps v. Smith, 175 Ga. 795, 166 S.E. 234 (1932).
Action against purchaser at sale under security deed.
- In an ejectment suit by a grantee of the purchaser at a sale had in accordance with the powers conferred by a security deed, against the grantor in such deed, the plaintiff is not required to show title personally other than by showing the sale, and in such a suit a verdict is demanded in favor of the plaintiff, where the defendant does not attack the validity of the sale or of any of the deeds under which the plaintiff claims, but alleges only that defendant had become a purchaser of the land from the plaintiff's grantor, which was not sustained by evidence, and that defendant had acquired title to the land after the date of the security deed with warranty, since where a vendor, with no title to land, sells or mortgages the land, but afterwards acquires title, such title inures to the benefit of the vendee or mortgagee. Morris v. Butler, 184 Ga. 845, 193 S.E. 883 (1937).
O.C.G.A. § 44-11-1 not pertinent where suit brought for injunction and damages for cutting timber. Farrar Lumber Co. v. Brindle, 170 Ga. 37, 151 S.E. 923 (1930).
Plaintiff must have interest or right in land.
- A plaintiff in a suit to enjoin cutting and converting trees standing on land, as in other cases of injunction, must have some interest or right in the land to protect. First Nat'l Bank v. Harmon, 186 Ga. 847, 199 S.E. 223 (1938).
When donee of parol gift of land gains title.
- A parol gift of land, accompanied by possession, based upon a consideration meritorious, is not of itself sufficient to pass title into the donee, but a donee of land under a parol gift based upon a meritorious consideration, who, with the consent of the donor, enters into possession, and makes valuable improvements upon the faith of the gift, acquires a perfect equity as against the donor, the donor's heirs, and those claiming under the donor with notice and in such circumstances the donee can defend an action of ejectment by proof of such perfect equity. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945).
Possession of land under a voluntary agreement, based upon a meritorious consideration, with valuable improvements made upon the faith thereof, will invest the holder with such right or equity that the holder cannot be ousted by the donor, or by a purchaser from the holder with notice; a mere parol gift, however, is not, without more, sufficient to pass title, nor will it vest in the donee any right or equity as against a subsequent purchaser from the donor, with or without notice. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938).
A donee of land under a parol gift who, in pursuance thereof, enters into possession with the consent of the donor, and makes valuable improvements upon the faith of the gift, acquires such a perfect equity in the premises as that, upon a suit in ejectment against the donee by the donor or the donee's heirs at law, the donee may, by proof of these facts, successfully defend possession, and a plea setting up such equity should not be stricken on demurrer (now motion to dismiss), even though it contains no prayer for specific performance. Parker v. Parker, 214 Ga. 509, 105 S.E.2d 742 (1958).
What plaintiff must aver.
- The purpose of ejectment is to eject the defendant from possession of the land involved. Consequently, the averments of the plaintiff must allege that plaintiff is entitled to possession and the defendant wrongfully or unlawfully keeps plaintiff out of possession. Harry v. Scenic Heights Dev. Corp., 220 Ga. 497, 140 S.E.2d 192 (1965).
Ways plaintiff can prove title.
- The plaintiff may carry the burden of establishing plaintiff's own title either by tracing title from the original source of title to plaintiff personally, through conveyances, transmission of title by operation of law, or both; or through presumptions which the law recognizes as arising from certain given states of fact; or by the admissions, actual or implied, of the defendant or privies in estate; or by showing title by prescription, or a certificate under O.C.G.A. Art. 2, Ch. 2, T. 44; or by proving such a state of facts as will estop the defendant from denying plaintiff's title. Bridges v. McGalliard, 207 Ga. 422, 61 S.E.2d 922 (1950).
Defense that plaintiff's own claim to title is void or insufficient.
- A plaintiff in ejectment must recover on the strength of plaintiff's own title, and not on the weakness of the title of the defendant. Consequently, in such an action it is generally a good defense that the plaintiff's claim of title is void and insufficient to support plaintiff's alleged claim of title. Crump v. McEntire, 190 Ga. 684, 10 S.E.2d 186 (1940).
Defendant may show paramount title of another.
- A defendant in ejectment can defeat the plaintiff therein by showing a paramount title to the premises in dispute outstanding in another, without connecting defendant's possession therewith. Guthrie v. Gaskins, 171 Ga. 303, 155 S.E. 185 (1930).
Defense of prescriptive right under color of title.
- In an action to recover land, if the plaintiffs make out a prima facie case, and the defendants rest their claim upon an alleged prescription under color of title for over seven years, the burden is upon them to affirmatively establish the same by evidence. Bussey v. Jackson, 104 Ga. 151, 30 S.E. 646 (1898).
In ejectment action where defendants allege adverse title to property, under the law, the defendants are entitled to prevail in the case if the plaintiff fails to establish title to the property as alleged, and are not required to prove by a preponderance of evidence that they have adverse title to the property. Morgan v. Lester, 215 Ga. 570, 111 S.E.2d 228 (1959).
Judge may charge jury plaintiff must recover through own title.
- It is always proper in an ejectment case to tell the jury that "in an ejectment case the plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant's title." Sikes v. Seckinger, 170 Ga. 1, 152 S.E. 65 (1930).
Directed verdict justified for defendant long in possession when plaintiff's claim vague.
- Where, the evidence adduced on the trial of ejectment suit was too vague and indefinite to show title in the plaintiffs, by virtue of inheritance through parties dying years ago, the trial court did not err, at the conclusion of evidence offered by both sides, in directing a verdict for the defendant who, according to the plaintiffs' evidence, had been in possession of the premises for a long number of years prior to the institution of the suit. Floyd v. Bell, 202 Ga. 269, 42 S.E.2d 639 (1947).
Plaintiff must prove title even if verdict for defendant lacks evidence.
- Even if the verdict for the defendant was without evidence to support it that fact would not relieve the plaintiff of the burden placed on plaintiff by law, in a complaint for land, to show title in plaintiff. Woodard v. Bowen, 213 Ga. 185, 97 S.E.2d 573 (1957).
Acquiescence
Landowner estopped from recovery where landowner allows use by public utility for long period.
- If a landowner stands by and permits, without legal objection, a public utility company to appropriate the owner's land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, the landowner, not to protect the company but to benefit the public, will be estopped from recovering the land in ejectment or from enjoining its use for the service, but will, if the landowner moves in time, be remitted to an appropriate action for damages. Georgia Power Co. v. Kelly, 182 Ga. 33, 184 S.E. 861 (1936).
Purchaser's action against utility enjoinable.
- Subsequent purchaser of land, after predecessor in title had conveyed land to the State Highway Department (now Department of Transportation), and after electric power company, with right of eminent domain, without condemning the land or acquiring it from the owner, had constructed, with the permission of the State Highway Department (now Department of Transportation), its electric power line along the highway and over the land was serving the public through such line, could not eject the power company or enjoin the service until the purchaser was compensated for the land, and where such purchaser declared an intention to remove the power line from the land, the purchaser would be enjoined, at the instance of the power company, from interfering with the service. Georgia Power Co. v. Kelly, 182 Ga. 33, 184 S.E. 861 (1936).
Applicability of O.C.G.A.
§ 44-4-6. - There is nothing which would prevent the rule of law declared in O.C.G.A. § 44-4-6 from being applied in an action for land, where the evidence shows the acquiescence and the paper title of the litigants embraces the land to the line thus established. Calhoun v. Babcock Bros. Lumber Co., 198 Ga. 74, 30 S.E.2d 872 (1944).
Proof of parol agreement by mere acquiescence of adjoining landowners insufficient.
- Where the defendant contends simply that the land in controversy was given to defendant by parol agreement, but that for some reason the land was not included in defendant's deed, in order to set up an equitable title in defense of an ejectment suit, it is necessary for the defendant to show more than mere acquiescence for seven years by acts or declarations of adjoining landowners in order to take the case out of the operation of the statute of frauds. Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91 (1945).
Common Grantor
Holder of better title from common grantor wins.
- Where the evidence shows that plaintiff and defendant claim under a common grantor, the holder of the better title from such grantor is entitled to prevail in an ejectment suit. Owens v. Conyers, 189 Ga. 793, 7 S.E.2d 675 (1940); Holliday v. Guill, 196 Ga. 723, 27 S.E.2d 398 (1943); Patellis v. Tanner, 199 Ga. 304, 34 S.E.2d 84 (1945).
Plaintiff must show title from grantor.
- The mere fact that both parties claim under a common grantor does not dispense with the need to show that the plaintiff has acquired title or an interest from the common grantor. First Nat'l Bank v. Harmon, 186 Ga. 847, 199 S.E. 223 (1938); Holliday v. Guill, 196 Ga. 723, 27 S.E.2d 398 (1943).
Even if both parties have deeds to separate tracts.
- Where plaintiff claims one tract, and defendant claims another, plaintiff is not relieved of the necessity of proving title merely because the parties had deeds to the two tracts claimed by them respectively, their claims of title going back to a common grantor who also was a grantee in a prior deed covering both tracts. Sinclair v. Friedlander, 197 Ga. 797, 30 S.E.2d 398 (1944).
Where defendant holds under same grantor, plaintiff need not prove title in common source.
- If plaintiff shows that defendant holds under grantor under whom plaintiff claims, plaintiff makes the prima facie case for the application of the ordinary rule relieving the plaintiff of the necessity of proving title into the common source. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938).
Plaintiff may examine defendant to show common grantor.
- Plaintiff may examine defendant orally on the witness stand for the purpose of showing that the defendant holds under the common grantor. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938).
Reliance on common grantor rule opens plaintiff's title to attack.
- When a plaintiff establishes and relies upon the common grantor rule, plaintiff opens chain of title derived therefrom to any attack which the defendant may find available. North Ga. Prod. Credit Ass'n v. Vandergrift, 239 Ga. 755, 238 S.E.2d 869 (1977).
Plaintiff recovers by showing title and right of entry from common grantor.
- Where plaintiff and defendant both claim under a common grantor, or propositus, that common grantor or propositus will, for the purposes of the case, be treated as a true and original source of title. The plaintiff may recover by showing legal title and right of entry as derived from that source. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938).
Use of sheriff's deed to prove chain of title.
- A sheriff's deed executed in pursuance of a foreclosure of a security deed, when accompanied by appropriate supporting documents, is admissible in evidence as proof of a link in the chain of title from the common grantor, although there is no evidence of possession of the land by the grantor in the security deed. Owens v. Conyers, 189 Ga. 793, 7 S.E.2d 675 (1940).
Purchase by deed prevails over oral gift from same grantor.
- In an action for land, where the plaintiff and the defendant claim under a common propositus, the plaintiff's claim being based upon a purchase by deed from the defendant's husband, and the defendant's claim being based upon an oral gift from the same person, and where the defendant had made no valuable improvements on the faith of the gift, nor acquired prescriptive title based on actual possession thereunder, verdict in the plaintiff's favor is supported by the evidence. Beetles v. Steadham, 186 Ga. 110, 197 S.E. 270 (1938).
Proper Parties
Ejectment must be commenced against the person in possession. Douglas v. Vourtsanis, 203 Ga. 64, 45 S.E.2d 203 (1947).
Petition brought in ejectment against one not in possession, to evict the actual occupants who were not parties to the suit, fails to state a cause of action. Douglas v. Vourtsanis, 203 Ga. 64, 45 S.E.2d 203 (1947).
Actual tenant in possession is proper defendant in action of ejectment; that tenant is the adverse holder to the plaintiff, and plaintiff has a full right to treat the tenant as the person keeping plaintiff out of the land. Douglas v. Vourtsanis, 203 Ga. 64, 45 S.E. 203 (1947).
Tenant must be joined in suit against landlord.
- Both in the fictitious form and in the statutory action for land, where the premises are actually occupied by a tenant, an action cannot be maintained against the landlord without adjoining the tenant. Douglas v. Vourtsanis, 203 Ga. 64, 45 S.E.2d 203 (1947).
Tenant's wrongful eviction claim dismissed following foreclosure.
- Trial court properly granted summary judgment to a property company and others in a tenant's suit asserting wrongful eviction and other claims because the tenant was properly summarily dispossessed following a foreclosure on the real estate at issue. Oduok v. Wedean Props., 319 Ga. App. 785, 738 S.E.2d 626 (2013).
Amendment to reflect change of lessor.
- There can be no recovery in ejectment where the sole lessor of the plaintiff was dead when the suit was brought, but an amendment introducing a new lessor of the plaintiff is permissible any time before trial. Roberts v. Tift, 136 Ga. 901, 72 S.E. 234 (1911).
Joinder of prior grantors.
- Where in an action in the nature of a complaint for land it is necessary, in order for the defendant to establish a claim to the land, that deeds respecting the land in controversy be reformed, it is permissible to make prior grantors to the plaintiff parties to the action, so as to authorize the granting of such relief. In such a case the grantors in the deed which it is sought to reform by reason of their obligations as warrantors of the title are proper and necessary parties. Volunteer State Life Ins. Co. v. Powell-White Co., 196 Ga. 372, 26 S.E.2d 815 (1943).
Description of Land
Description must be sufficient for sheriff to execute writ of possession.
- In an action for the recovery of land and ejectment the description of the property in the declaration must be sufficiently definite to enable the sheriff, in the event the plaintiff recovers, to execute a writ of possession from the description given. Hamil v. Gormley, 188 Ga. 585, 4 S.E.2d 471 (1939); Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943); Phillips v. Wilson, 212 Ga. 54, 90 S.E.2d 553 (1955); White v. Gordon, 213 Ga. 730, 101 S.E.2d 759 (1958).
Failure to identify lands so that writ of possession might issue.
- Plaintiff cannot recover where plaintiff fails to establish any title to the lands described in the petition, and fails to so identify the lands that a writ of possession might properly issue. Edwards v. Fryer, 210 Ga. 560, 81 S.E.2d 823 (1954).
Description that land bounded by plaintiff's land "on three sides" insufficient.
- Petition in a statutory complaint for land which bounds the property on three sides by "other property" of the plaintiff, but gives neither measurements of the boundaries nor a starting point on the ascertainable boundary to determine the location of the tract, falls below the required standard for the description of the land. Hamil v. Gormley, 188 Ga. 585, 4 S.E.2d 471 (1939).
Sufficiency of description may be raised in motion to dismiss.
- The question of sufficiency of description in a declaration in ejectment may be raised by general demurrer (now motion to dismiss), and an oral motion to dismiss may be made after pleading. Hamil v. Gormley, 188 Ga. 585, 4 S.E.2d 471 (1939).
Ambiguity must be patent.
- A declaration in ejectment, which upon its face discloses a patent ambiguity, is subject to general demurrer (now motion to dismiss), but unless the ambiguity is patent, and appears on the face of the declaration, the suit cannot be dismissed for uncertainty in the description. White v. Gordon, 213 Ga. 730, 101 S.E.2d 759 (1958).
Description in petition and map, if sustained by proof, sufficient to withstand motion to dismiss.
- The description of land set apart contained in the petition of a plaintiff when considered in connection with a map attached as an exhibit, while it may not afford a precise identification of the land sued for, is sufficient, as against a general demurrer (now motion to dismiss), to afford a basis for recovery of land, if the allegations of the petition are sustained by proof. Dubberly v. Chapman, 177 Ga. 416, 170 S.E. 228 (1933).