McGill v. Dowman
McGill v. Dowman
Opinion of the Court
Even though a plaintiff might not be entitled to equitable relief under his averments or prayers, the petition should not be dismissed on general demurrer if it states a cause of action good at law, since in such a case he would be entitled to prove and enforce his strictly legal rights and remedies according to the rules of law. Latham v. Fowler, 192 Ga. 686, 690 (16 S. E. 2d, 591), and cit. According^, since the original petition against a husband, and wife was an action of ejectment in the usual form, to which there was no demurrer, the suit was maintainable irrespective of the merits of the general demurrer of the defendants to an equitable amendment seeking to consolidate the defendant wife’s appeal in the same court in a subsequent processioning proceeding brought by her, on the ground that the plaintiff showed an adequate remedy at law and no basis for the equitable relief prayed.
(a) The judgment entered on the jury’s verdict for the plaintiff only fixed the dividing line and ownership of the disputed tract,
(b) There is no merit in the grounds of demurrer to the amendment, that a consolidation of the plaintiff’s ejectment suit against the husband and wife, and of the wife’s appeal to the same court from the processioners’ return in the court of ordinary, would be improper, and would be a misjoinder of parties, because the husband was not a party to the wife’s appeal — since the question as to the boundary line was the one controlling issue in both cases, and the wife as owner of the title and the husband as head of the family were the sole defendants in the ejectment suit, which was first filed. This is true since the ejectment suit was brought to determine, not only the proper line, but title and possession of the disputed tract; and the court had no jurisdiction in the processioning proceeding alone to adjudge the title or grant a writ of possession. See Byrd v. McLucas, 194 Ga. 40 (20 S. E. 2d, 597), and cit.; Kidd v. Finch, 188 Ga. 492, 496 (4 S. E. 2d, 187); Dublin Veneer Co. v. Kendrick, 179 Ga. 237, 244 (175 S. E. 687); Sanders v. Wilson, 193 Ga. 393, 396 (18 S. E. 2d, 765), and cit.; Code, § 3-112.
' 2. “ £An unascertained or disputed boundary line between coterminous proprietors may be established, (1) by oral agreement, if the agreement be accompanied by actual possession to the agreed line, or is otherwise duly executed; or (2) by acquiescence for seven years by the acts or declarations of the owners of adjoining land, as provided in the Civil Code, § 3247’ (1933, § 85-1602).- . . cIn order that a line may be established by acquiescence for seven years by the acts or declarations of the owners of adjoining land, it is not essential that the acquiescence be manifested by a conventional agreement. . . When a line has been located by an executed parol agreement between the coterminous proprietors, or established by seven years acquiescence as provided by the Civil Code, . . the line thus located and established is binding on the grantees of the coterminous proprietors.’ ” Lockwood v. Daniel, 193 Ga. 122 (17 S. E. 2d, 542), and cit.; Osteen v. Wynn, 131 Ga. 209 (3, 4) (62 S. E. 37, 127 Am. St. R. 212); Bradley v. Shelton, 189 Ga. 696 (4, a) (7 S. E. 2d, 261), and cit.; Tietjen v. Dobson, 170 Ga. 123 (3), 126 (152 S. E. 222, 69 A. L. R. 1408); Robertson v. Abernathy, 192 Ga. 694 (3), 697 (16 S. E. 2d, 584).
The verdict for the plaintiff being demanded, it is unnecessary to consider special exceptions to the refusal to give the defendant wife the opening and concluding argument, to the admission of evidence, and to the giving of certain instructions to the jury.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.