1. In order to obtain jurisdiction of a defendant in a different county from that in which he resides, some of the prayers of the petition must be common to both the nonresident and the resident defendants.
2. The evidence failing to show whether or not the suit was brought within seven years of the discovery of the fraud or lack of due diligence on the part of the petitioner and his predecessors in title, the court erred in taking the question of cancellation from the jury, on the theory that the action to cancel was barred due to the long lapse of time since the deeds were recorded on the deed records of the county.
This is the second appearance of this case in this court, the ruling in the first appearance (Abernathy v. Rylee, 209 Ga. 317
, 72 S. E. 2d 300), holding that the petition stated a cause of action against some of the defendants. A concise statement of facts is contained therein, and therefore we only point out here that on the trial of the case the court directed the verdict against the defendants, Thomas W. Rylee and Mrs. Chestalet Rylee (now deceased with Thomas W. Rylee named the temporary administrator of her estate), for breach of warranty in favor of the plaintiff, C. C. Abernathy, and against Abernathy in favor of the defendant, Mrs. Nadine Hardy, on her cross-action for damages to timber cut on her land, further directing the jury that the only issue for them to decide was the amounts due Abernathy and Mrs. Hardy. A motion for new trial was filed by Thomas W. and Mrs. Chestalet Rylee, and upon her death the temporary administrator of her estate was made a party. After a hearing, the motion as amended was overruled, and the exception here is to that judgment.
1. In all actions to cancel deeds to land, the grantor and grantee therein are necessary parties. Taylor v. Colley, 138 Ga. 41
(74 S. E. 694); Kehr v. Floyd & Co., 132 Ga. 626
(64 S. E. 673); Brown v. Wilcox, 147 Ga. 546
(94 S. E. 993); Linder v. Ponder, 209 Ga. 746
(75 S. E. 2d 814). Hence the court did not err in directing the jury that, under the evidence, the pleadings, and the law, the court has jurisdiction of Mrs. Chestalet Rylee and to disregard her plea to the jurisdiction. See Code (Ann.) 2-4904, 2-4903, Code 3-204 Fowler v. Southern Airlines, 192 Ga. 845
(16 S. E. 2d 897); Ryner v. Duke, 205 Ga. 280
(53 S. E. 2d 362), However the court was in error in thus ruling out the plea to the jurisdiction of the Thomas W. Rylee, the admitted nonresident, since there are no prayers, either for legal or equitable relief, which are common to the other defendants and to him. He has no interest in common with the defendants under the prayers for equitable relief, nor is the breach of warranty claim against his mother common to his alleged breach of warranty, since the suit is brought on two separate warranties, which may not be joined in this action to give the court jurisdiction of this non resident. Direction is therefore given that he be eliminated from the case, since, as a matter of law, his plea to the jurisdiction is good.
3. One of the special grounds of the motion complains of the charge of the court that the jury should disregard the affidavit of forgery because Mrs. Chestalet Rylee had by deposition admitted she had signed the deed. Conceding but not deciding that the defendant, Thomas v. Rylee, might make an affidavit of forgery as to her deed, we do not think that the court erred in thus charging the jury, since the mother admitted the genuineness of her signature and she did not thereafter refute it as her signature.
For the reasons stated above the judgment must be reversed.
Judgment reversed with direction. All the Justices concur.