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BOND, guardian, v. RAY.
33503.
Declaratory judgment; from Twiggs Superior Court-- Judge Rowland. October 6, 1950.
FELTON, J.
The petition set forth facts entitling plaintiff to a declaratory judgment and the court did not err in overruling the demurrers thereto.
G. E. Ray filed an action in Twiggs Superior Court against Mrs. Mary Lou Simmons seeking a declaratory judgment. The court overruled the general demurrer to the petition and the defendant excepted. The petition alleged in substance the following: that the defendant is a resident of Twiggs County, Georgia; that on August 1, 1938, defendant executed and delivered to her husband, for love and affection, a deed conveying certain described real property then owned by her in Bibb County, Georgia, in which deed defendant reserved a life estate and provided that if her husband predeceased her the interest conveyed to him by the deed was to revert to her; that on May 31, 1939, defendant was committed to Milledgeville State Hospital as a person of unsound mind under a commission appointed by the Ordinary of Twiggs County, Georgia, but that no guardian was appointed for her property at that time; that in July, 1939, defendant was permitted to leave said hospital and did not return thereto until July, 1940; that while defendant was away from the hospital, on October 9, 1939, she and her husband executed and delivered to G. E. Ray, for a consideration of $500, a warranty deed to said property and he went into possession of it; that in 1943, G. F. Benjamin was appointed guardian of the person and property of defendant and at the time of the filing of the petition in this case was a resident of Twiggs County, Georgia; that at the time defendant executed and delivered the deed of October 9, 1939, she was of perfectly sound mind and that an actual controversy exists by reason of the facts (1) that defendant is now asserting that her deed to petitioner is void because she was insane at the time it was executed, (2) that defendant or a relative acting for her has employed an attorney-at-law who has notified the guardian that the deed is void and that petitioner has no title to said land, and (3) that defendant and her relative have also notified neighboring landowners that the deed is void and that petitioner has no title to said land; that due to these claims he cannot with safety and security sell the property because if the defendant should successfully attack the deed, petitioner would be liable on his warranty and that his uncertainty is added to by reason of the presumption of incapacity arising out of the fact that the deed was made after the defendant had been adjudicated a person of unsound mind; that petitioner has a purchaser who is ready, willing and able to buy the property at a price which the petitioner is willing to accept but for the facts alleged. Petitioner prayed, among other things, that the court take jurisdiction of the controversy and declare the rights and relations of the parties with respect to the deed and for other appropriate relief. The court, after appointing a guardian ad litem for the defendant, overruled the general and special demurrers to the petition and the defendant excepted.
The Supreme Court transferred this case to this court. Bond v. Ray, 207 Ga. 559 (63 S. E. 2d, 394).
1. The Declaratory Judgment Act of 1945 (Ga. L. 1945, p. 137; Code, Ann. Supp., 110-1101), provides in part: "(a) In cases of actual controversy the respective superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights, and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such. (b) In addition to the cases specified in paragraph (a) of this section, the respective superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that such declaration should be made, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." The facts alleged in this case present the most nearly perfect basis for the application of declaratory-judgment jurisdiction that has come to our attention. They show an actual controversy between adversary parties, consisting of a claim of legal title on one side and denial on the other. They show a justiciable controversy and a protectible legal interest. The danger or dilemma of the petitioner is present and does not depend on a contingency or the happening of a hypothetical future event, and the fact that the defendant has not instituted an action on her claim, and may never do so, does not make petitioner's rights to a declaratory judgment depend on a contingency. The petitioner's right to relief from uncertainty and insecurity with respect to his title and his legal relations with the defendant are present, real and urgent. He is entitled to know whether he owns the land and can use it or sell it or whether he is and has been and will continue to in effect be a tenant against his will at a rental price he has not agreed on, or whether he is a trespasser. And, so far as our investigation reveals, the facts show this action to be the exclusive remedy. This petition is not based solely on a question of fact primarily, the question of the sanity of the defendant. Legal title, interests and relationships are at stake and the mere circumstance that a fact determines that they are is incidental. In Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 242 (57 Sup. Ct. 461, 81 L. ed. 617, 108 A.L.R. 1000), the court stated: "That the dispute turns upon questions of fact does not withdraw it . . . from judicial cognizance. The legal consequences flow from the
facts and it is the province of the courts to ascertain and find the facts in order to determine the legal consequences. That is every day practice." The suitability of application for relief by prayer for a negative declaration is clear from the act of 1945 (Ga. L. 1945, pp. 137, 139; Code, Ann. Supp., 110-1111). To call such a prayer negative has been called a colloquialism, and has been said to describe a positive declaration that no right exists on the part of the defendant. Borchard, p. 229. For citations of other cases involving findings of fact as incidental to legal conclusions see Borchard, p. 396, 629. One case is cited by plaintiff in error on the contention that only a question of fact is involved. In Stark v. Rodriquez, 229 Minn. 1 (37 N.W. 2d, 812), it was held that where an employer sued an employee to have determined what amount was owed by the employer, the relationship of employer and employee being admitted, only a question of fact was involved. In that case the court stated: "Plaintiff in his brief admits that the action was instituted on the basis of a statement by this court in State ex rel. Smith v. Haveland, 223 Minn. 89, 93, 25 N.W.2d 474, 477, 174 A.L.R. 544, where we said: 'What is a protectible legal interest may be illustrated. A debtor, faced with the unfounded claim of a creditor, has a sufficient legal interest to justify a declaratory adjudication that such indebtedness has no basis. Borchard, Declaratory Judgments, 2d ed., p. 55. Suppose H alleges that S owes him $1,000, which S denies. Without waiting for H to commence suit, S may assert his right to relief from the insecurity of an unfounded claim by obtaining a declaratory judgment.' That, of course, is a situation different from what we have here. There, the purpose of the action would be to get a determination of whether the status of debtor and creditor existed between the parties. Here, that status is alleged by plaintiff, and the only question for determination is how much plaintiff owes defendant growing out of that status." See 16 Am. Jur. 31, 32 and 1950 Pocket Parts for authority for declaring rights and status where the validity of deeds and contracts is in question. In Georgia Marble Co. v. Tucker, 202 Ga. 390 (43 S. E. 2d, 245), the plaintiff did not allege any desire or intention of using or selling the timber on the lands title to which was in dispute. No such contingency is involved in this case as was involved in Sanders v. Harlem Baptist Church, 207 Ga. 7 (59 S. E. 2d, 720). Devine v. Los Angeles, 202 U. S. 313 (26 Sup. Ct. 652, 50 L. ed. 1046), is cited for the proposition that a mere verbal assumption of ownership is insufficient to call into question the determination of the title to property in a declaratory judgment action. That was not a declaratory judgment case and all the court held in this respect was that an action to remove a cloud on title could not be based on mere verbal assertions of ownership. See, generally: Borehard, Declaratory Judgments; Anderson, Declaratory Judgments; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 162 A.L.R. 756.
The court did not err in overruling the demurrers to the petition.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.
James D. Shannon, R. A. Harrison, Martin, Snow & Grant, contra.
Hall & Bloch, Denmnark Groover Jr., J. Rene Hawkins, for plaintiff in error.
DECIDED MAY 4, 1951.
Saturday May 23 05:43 EDT


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