Opinion
12829.
NOVEMBER 17, 1939. REHEARING DENIED DECEMBER 5, 1939.
Complaint for land. Before Judge Gower. Dooly superior court. March 4, 1939.
Davis Friedin, for plaintiffs. J. W. Dennard, for defendants.
1. "Where several plaintiffs jointly sue to recover land, alleging a joint title, there can be no recovery unless the plaintiffs prove a joint title." Shaddix v. Watson, 130 Ga. 764 ( 61 S.E. 828), and cit.; Powell on Actions for Land, 58, § 27, and notes. All or none must have right to recover. Hunt v. Lavender, 140 Ga. 157 (3) ( 78 S.E. 805). This was a joint action at law by tenants in common to recover land, and the above principle applies.
2. "Where land has been set apart as a statutory year's support for a widow and minor children, title to the land vests in the widow and minor children, subject to the power of the widow alone to convey in fee simple or mortgage the land for support of herself and minor children. Bridges v. Barbree, 127 Ga. 679 ( 56 S.E. 1025); Cleghorn v. Johnson, 69 Ga. 369; Phillips v. Cook, 158 Ga. 151 ( 123 S.E. 108); Allen v. Lindsey, 113 Ga. 521 ( 38 S.E. 975); Bank of Cuthbert v. Taylor, 158 Ga. 237 ( 123 S.E. 262)." Anders v. First National Bank of Barnesville, 165 Ga. 682 (4) ( 142 S.E. 98).
3. The allegations of the petition showing an absolute deed by the widow, conveying the land to the grantee therein, fails to allege any reason why it was not binding on her. In such circumstances the petition failed to allege a cause of action at least as to the widow, one of the tenants in common, suing jointly to recover the land. Accordingly the action fails as to all the plaintiffs. The judge did not err in sustaining the demurrer and dismissing the action.
Judgment affirmed. All the Justices concur.
No. 12829. NOVEMBER 17, 1939. REHEARING DENIED DECEMBER 5, 1939.
J. I. Powell died in 1923, leaving a widow and three minor children. In 1929 the widow, Mary S. Powell, under the Code, § 113-1002, caused to be set apart by the court of ordinary to her and the minor children, from the estate of her deceased husband, described realty as a year's support. The children were Rosa, Jewell, and Buford, all unmarried and then of the ages of 18, 15, and 13 years respectively. Rosa thereafter married Eddie Forehand, and later died intestate, leaving her husband and their three minor children, Bill, Jack, and Roger Forehand, as her sole heirs at law. Jewell married Sullivan. On June 2, 1930, Mary S. Powell individually, and making no reference to the year's support, executed to John B. Porter a deed conveying the land, purporting to secure a loan of $100, payable October 15, 1930. This was canceled of record on May 5, 1931. On March 14, 1931, the same grantor executed to the same grantee another deed conveying the same land, purporting to secure a loan of $160, payable September 1, 1931. This was not canceled. On May 5, 1931, the same grantor executed to Mrs. John B. Porter a warranty deed purporting to convey the same land on the recited consideration of $420. This deed did not mention the year's support or the interest of any other person in the land. On October 10, 1938, Mary S. Powell, her daughter Jewell Sullivan, Buford Powell, and her grandchildren, Bill, Jack, and Roger Forehand, children of her deceased daughter Rosa Powell, brought their action against John B. Porter and Mrs. John B. Porter, seeking to recover possession of the land, with mesne profits of the alleged yearly value of $75 from May 5, 1931. The petition alleged that the plaintiffs, except Mary S. Powell and Jewell Sullivan were minors; that the widow and her minor children became owners of the land in fee simple, by virtue of the award setting apart the year's support; that the plaintiffs and the defendants claim under J. I. Powell as a common grantor; and that the only amount received under the security deed was $60, which was paid in full before execution of the warranty deed by delivery of specified farm products. There was no allegation in reference to cancellation of either of the security deeds or of the warranty deed, nor was there any prayer for cancellation or other equitable relief. The defendants moved to dismiss the action, on the grounds, (1) that the petition failed to allege a cause of action; (2) and that it showed on its face that title by prescription had ripened in Mrs. Porter. The motion was sustained, and the plaintiffs excepted.