Opinion
17894.
ARGUED JUNE 10, 1952.
DECIDED JULY 14, 1952.
Land registration. Before Judge Guess. DeKalb Superior Court. February 28, 1952.
Philip H. Alston Jr., Daniel B. Hodgson and Alston, Foster, Sibley Miller, for plaintiff in error.
Eugene Cook, Attorney-General, Robert H. Gambrell, Assistant Attorney-General, M. H. Blackshear, J. C. Murphy, Edward D. Wheeler and Sam G. Dettelbach, contra.
Where an adjoining landowner is made a party defendant in a land-registration proceeding and duly served, such defendant is bound by the finding in the report of the examiner and the final decree of registration, and will not be allowed, under Code § 60-416, several months after the final decree, to attack the same by a caveat thereto upon grounds that should have been pleaded as a defense in the main action.
No. 17894. ARGUED JUNE 10, 1952 — DECIDED JULY 14, 1952.
The plaintiff in error, Mrs. Hester O. Miller, filed a caveat to a land-registration proceeding on November 12, 1951, which had been brought by Mrs. Mary E. Turner, one of the defendants in error here, in which she alleges that all entries made therein are void and of no effect, because the following land-registration statutes of Georgia as codified under Title 60 of the Code of 1933, as amended, were not complied with: (1) Code § 60-302, because the entry of service upon the petition is false and all persons of interest were not given in the report of the examiner, in that the caveatrix's daughter, Marilyn D. Miller Baldwin, is a co-owner with the caveatrix of the adjoining property, and said registration will involve six feet of their property which the examiner failed to show, they having an interest therein, having obtained prescriptive title thereto as the line between the properties has been recognized and acquiesced in for more than seven years; (2) Code § 60-304, because the examiner failed to set forth the true state of the title to said lands, the adjoining property having been set aside as a year's support for the caveatrix and her daughter, and said registration sought to include a part of their premises; (3) Code § 60-214, because no notice was posted on the house owned and occupied by the caveatrix and her daughter; (4) Code § 60-222, because the petitioner for registration joined two parcels of land and only one decree was entered therein; and (5) Code § 60-217, because no survey of said lots was made.
On October 23, 1950, the preliminary and final reports of the examiner were filed, and no exceptions were made thereto. On November 13, 1950, approximately one year prior to the filing of the caveat, the court entered a final decree showing title to be in the name of Mrs. Mary E. Turner, and to this judgment no exceptions were filed, although the plaintiff in error here had been served and was a party defendant thereto.
After the caveat was filed to the decree of registration, the defendants named therein filed general demurrers thereto, which, after consideration by the court, were sustained and the caveat was dismissed. The exception here is to this final judgment.
Two of the questions here involved were settled by the ruling in Lankford v. Milhollin, 203 Ga. 491 ( 47 S.E.2d 70). Those questions are: (1) is the decree of registration binding upon all parties to that proceeding and a bar to any subsequent attempt to have adjudicated matters that were or could have been determined in that proceeding? and (2) are the provisions for a caveat by any interested person objecting to any entry, notation, or registry made by the clerk, found in Code § 60-416, intended to and, as a matter of law, can they authorize a party to the registration proceeding to go back of the decree of registration? The first of these questions was answered in the affirmative and the second in the negative. We quote from the last sentence in that opinion at page 496 as follows: "The judgment registering the title freed the land from any and all pre-existing claims against the same that were not noted on the title register at the time except those . . pointed out [Code § 60-419] and which did not include the claim here asserted." The decree of registration here complained of conforms to the findings and report of the examiner, which was unexcepted to. That report when not excepted to within 20 days as required by Code § 60-304 became binding upon all parties to that proceeding and they are not allowed to now challenge the same. Laramore v. Jones, 157 Ga. 366 ( 121 S.E. 411); Burgess v. Simmons, 207 Ga. 291 ( 61 S.E.2d 410).
But counsel for the caveatrix make countless criticisms both in the caveat and in their briefs of argument before this court, of the examiner's report, the failure to post notice, the joining of two separate tracts in one proceeding, and other departures from strict adherence to the procedure of the land-registration statute; all of which complaints seek, contrary to law, to go back of the examiner's report and the decree of registration. Since none of the irregularities referred to render the decree void, these complaints do not constitute a valid attack thereon. Hightower v. Mustian, 8 Ga. 506; Hunt v. Doyal, 128 Ga. 416 ( 57 S.E. 489); Burch v. Dodge County, 193 Ga. 890 ( 20 S.E.2d 428); Gibbs v. Gibbs, 202 Ga. 105 ( 42 S.E.2d 374); Code, § 110-705; Powell on Land Registration, pp. 30-32, § 26. Every complaint that the plaintiff in error now seeks to make could have been made, and as a matter of law must have been made, as a defense in the main registration case, and there is nothing in the statute that allows one to simply refuse in that proceeding, after having been made a party defendant and having been served, to make any defense she had and then wait for a number of months and, under claim of authority conferred by Code § 60-416, raise for the first time such defenses by a caveat. From what has been said the court did not err in sustaining the demurrers and dismissing the caveat.
Judgment affirmed. All the Justices concur, except Atkinson, P.J., not participating.