The plea to the jurisdiction by the defendant, a resident of Polk County, to the petition brought in Floyd County, the situs of the land, was properly sustained, the suit being one in which the plaintiffs were seeking the aid of equity to determine a boundary line between coterminous owners of land and to establish title to the land.

The judgment under review is one sustaining a plea to the jurisdiction and dismissing an equitable petition. Andy Payne and another filed their petition in three counts in Floyd Superior Court against C. B. Terhune, a resident of Polk County, in which they alleged: They jointly owned as tenants in common land lot 359 in the 3rd district and 4th section of Floyd County, and the defendant was the owner of lot 290 in said district, section, and county. The plaintiffs' lot was adjacent to and immediately south of the lot of the defendant, and the plaintiffs claim title to lot 359, but the defendant had entered into possession of said lot, and was causing irreparable damages by cutting timber therefrom; the boundary line had become confused and obscure, and the plaintiffs had no adequate remedy at law for a complete determination of the cause, and that unless equity intervenes, there would be a multiplicity of suits. The prayers of the first count were for a judgment establishing the north line of lot 359, and decreeing title thereto in the plaintiffs. Count 2 sought to recover actual and punitive damages for the cutting of the timber, and count 3 prayed for damages by reason of diminution of the value of the plaintiffs' property.

A suit to establish title to land, or to establish the evidence of title, is one that must be brought in equity, but suits to recover land upon legal title are actions at law. The common test as to whether an action to recover land is an action respecting title to land within the venue provision of our Constitution is whether the plaintiff can recover on his title alone, or whether he must seek the aid of a court of equity in order to recover. Frazier v. Broyles, 145 Ga. 642 (89 S. E. 743); Owenby v. Stancil, 190 Ga. 50 (1, 2, 3) (8 S. E. 2d 7). The petition alleges that the boundary line between the lots of the plaintiffs and the defendant had become confused and obscure, that the plaintiffs did not have an adequate remedy at law, and if not granted equitable relief, there would be a multiplicity of suits; and in the first count it was prayed that a decree be granted establishing the boundary line between the lots of the parties, and decreeing title to lot 359 to be in the plaintiffs. The other two counts prayed for damages against the defendant incident to the cutting of timber. The petition thus shows that the plaintiffs are seeking the aid of a court of equity, first, to ascertain and determine the boundary line, which a court of equity under certain circumstances has a right to do ( Georgia Peruvian Ochre Co. v. Cherokee Ochre Ga., 152 Ga. 150, 154, 108 S. E. 609; Calhoun v. Edwards, 202 Ga. 95 (4), 42 S. E. 2d 426); and second, the aid of equity in decreeing title to lot 359 to be in the plaintiffs.

Under the allegations and prayers contained in the petition here involved, we construe the action, not as a suit at law respecting title to land, but as a petition for equitable relief. It appears from the allegations of the petition that the only defendant named and against whom substantial equitable relief was prayed, resided in a county of this State other than that in which the action was brought, and it is thus apparent that Floyd County was without jurisdiction of the defendant, and it was not error to sustain the plea to the jurisdiction and dismiss the petition.