
    CHIDSEY et al. v. BROOKES et al., trustees, and vice versa.
    
    1. A petition in an action to recover land fails to set out a cause of action-where the title of the plaintiff to the premises as therein alleged is insufficient in law to support a recovery.
    2. ,Tlie title to lands in Georgia can only pass by devise where the will has been probated in this State according to the statutes in such eases, made and provided.
    3. A devisee under a will executed and probated in another State can not maintain a suit to recover the land adversely held, until the will has. been probated in this State.
    4. The ruling in Doe v. Roe, 31 Ga. 593, that “An exemplified copy (conforming to the provisions of the act of Congress) of a testamentary-paper, executed, published, probated, and recorded as a last will and testament, in the State of Maryland, may be a good muniment of title to real estate in Georgia, even though the will was neither probated nor recorded in this State,” is formally overruled.
    5. “When the Supreme Court has before it both a main bill of exceptions and a cross-bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first; and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed.”
    Argued June 21, 1907.
    Decided February 26, 1908.
    Complaint for land. Before Judge Wright. Floyd superior court. February 1, 1907.
    B. L. Chidsey, W. B. Chidsey, George B. Chidsey, and James Berrien Chidsey and Sarah Frances Chidsey (the last two by their next friend, George F. Chidsey) filed their petition in the superior court of Floyd county against W. W. Brookes, J. B. Sullivan, and others, as trustees of Shorter College, to recover an undivided one-eighth interest in a described lot of land. It was alleged that each of the petitioners was the owner of an undivided one-fortieth interest in the land described; and that the land was in the possession of the defendants, who refused to deliver possession thereof to petitioners, or pay them the mesne profits thereof. Attached to> the petition was an abstract of title beginning with the grant from the State to Ambrose Sanders, and terminating in a will alleged to have been executed by S. S. Farrer and probated in the court of ordinary of the district of Charleston, State of South Carolina. The abstract of title was by reference made a part of the petition. The petition was amended by attaching as a part thereof a copy of the will of S. S. Farrer; and by alleging, that upon its probate- and record in the district of Charleston, State of South Carolina, on May 2, 1861, the nominated executors qualified; that they have never qualified as executors in the State of Georgia; that they assented to the devise of the land sued for, as set out in the third and seventh items of the will, and assumed no further control of the land, but delivered possession thereof to the life-tenant to be enjoyed by her and by the mother of the plaintiffs during her life,, and by the plaintiffs at the termination of the successor’s life estate. The petition was amended in other particulars not necessary to notice. The defendants demurred generally on the ground that no cause of action was set out in the petition, and specially to certain paragraphs. The demurrer was overruled, and exceptions pendente lite were filed. The defendants answered, denying the title of the plaintiffs and their right to the possession of the land. The case proceeded to trial, and certain documents were allowed in evidence over the objection of the defendants. To the rulings of the court admitting the same in evidence the defendants excepted pendente lite. At the conclusion of the evidence the court directed a verdict in favor of the defendants. A motion for new trial was overruled, and the plaintiffs excepted. The defendants sued out a cross-bill of exceptions, assigning error upon their exceptions pendente lite.
    
      Denny <& Harris and W. M. Henry, for plaintiffs.
    
      E. II. Callaway, Dean & Dean, and Joel Branham, for defendants.
   Atkinson, J.

(After stating the facts.) “When the Supreme Court has before it both a main bill of exceptions and a cross-bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first; and if the judgment therein excepted to is reversed, the writ of error issued upon the former will be dismissed.” Rives v. Rives, 113 Ga. 392 (39 S. E. 79) ; Cheshire v. Williams, 101 Ga. 814 (29 S. E. 191). The demurrer in the present case raises the question of the right of the plaintiffs to recover on the title alleged in the petition. In the recent ease of Dugas v. Hammond, ante, 87 (60 S. E. 268), this court held that where the plaintiff set forth in his petition the title upon which he relied to recover the land, and that title was insufficient in law, the petition should be dismissed upon demurrer. It appears from the petition in the present case that the plaintiffs base their right to recover upon a will probated in the State of South Carolina, but which had never been probated or admitted, to record in any court in this State. The question is therefore presented of the right of the plaintiffs, whose title is dependent upon a foreign will which had never been probated in this State, to maintain and (prosecute an action for the recovery of land.

It is an acknowledged principle of law 'that the title and disposition of land is exclusively subject to the laws of the State where it is situated, and which alone can prescribe the mode by which title «an pass from one person to another. U. S. v. Crosby, 7 Cranch, 115 (3 U. S. (L. ed.) 287) ; Kerr v. Moon, 9 Wheat. 565 (6 U. S. (L. ed.) 161) ; McCommick v. Sullivant, 10 Wheat. 192 (6 U. S. (L. ed.) 300) ; Robertson v. Pickrell, 109 U. S. 608 (27 L. ed. 1049, 3 Sup. Ct. 407) ; Campbell v. Porter, 162 U. S. 478 (40 L. ed. 1044, 16 Sup. Ct. 871) ; Sneed v. Ewing, 5 J. J. Mar. 460 (22 Am. D. 41). In this State a paper purely testamentary in character must be probated before it will serve to pass title. Johnson v. Sirmans, 69 Ga. 617. If the will upon which the plaintiffs relied to establish title in themselves had been a domestic will and had never been probated, it would have been inadmissible in evidence .as a muniment of title, and ineffectual as a basis of recovery of realty therein attempted to be devised. Under the Civil Code, §3291, personalty passing under the will of a non-resident, admitted to probate in another State, might be recovered in an action in this State upon a copy of the will and probate thereof, when properly certified according to the act of Congress. In 1878 the legislature first made provision for the probate of a foreign will, and in 1894 another act was passed by the General Assembly for the probate of foreign wills. This latter act is now embodied in the Civil Code, §§3298-3306. These sections declare that a will conveying property in this State, executed by persons residing out of this State, shall be treated as a foreign will; and that such foreign will may be admitted to probate in the same manner and upon like proof as in the case of domestic wills, or it may be admitted to probate upon the production of an exemplification of the probate proceedings certified according to the provision of the act of Congress, and may be attacked or resisted on the same grounds as other judicial proceedings from a sister State of the United States. If a foreign probate was sufficient without the domestic probate, then this statute was unnecessary and useless. Its enactment was a legislative appreciation of the general principle that judicial proceedings in one State have no extra-territorial force as to land in another State. The effect of these code sections is to render probate essential to the validity of the -will as a conveyance of title, whether the will be domestic or foreign. Similar statutes have been enacted in other States, and have been given this interpretation. McCommick v. Sullivant, supra ; Thrasher v. Ballard, 33 W. Va. 285 (10 S. E. 411, 25 Am. St. R. 894) ; Lindley v. O’Reilly, 50 N. J. L. 636 (15 Atl. 379, 1 L. R. A. 79, 7 Am. St. R. 802). Prior to 1878, and while there was no statutory provision for the probate of a foreign will, it was held by this court that an exemplified copy of a will probated in another State was a good muniment of title to real estate in Georgia, although the will was neither probated nor recorded in this State. Doe ex dem. Dooley v. Roe and McCurley, 31 Ga. 593. Counsel for defendants in error ask leave to review this-case on this point. We think the ruling is opposed to the almost, if not quite universal holdings in other jurisdictions. It seems to-us that to give conclusive effect to a foreign will disposing of land in this State would be to allow courts of other States to establish-the validity of a will disposing of land in.Georgia. The learned judge who delivered the opinion of the court predicated this ruling upon the act of Congress which requires full faith and credit to be given in each State to the records and judicial proceedings of all other States. But this provision of - the Federal constitution and the act of Congress apply only to the records and proceedings of' courts so far as.they have jurisdiction, and -are not to be construed-so as to give a foreign judgment extra-territorial effect in disposing of land in another State. Lindley v. O’Reilly, supra, and eases cited. We think that the act of 1894, providing for the probate of a foreign will in this State, impliedly repeals the ruling announced in the Dooley case in 31 Ga. ; but as we deem the ruling there made-to be unsound, we formally overrule so much of that cas-e as decides, that an exemplification of a probate of. a foreign will is admissible in evidence as a muniment of title to real estate in this State, although th-e will was neither probated nor recorded in this State.

According to the allegations in the petition the title of the plaintiffs depends upon the unprobated foreign will as being effectual to-convey title to themselves. It was necessary, therefore, to establish their title that they should have alleged that the will had been probated in this State. The defect in the plaintiffs’ title appears upon the face of their petition; and the court should have sustained the -demurrer which challenged the sufficiency of the petition as setting forth a cause of action. Inasmuch as the court should have sustained the demurrer on this ground, it is unnecessary to discuss the other points made in the cross-hill of exceptions or in the main bill of exceptions. Inasmuch as the demurrer should have been sustained, the subsequent trial was nugatory. Accordingly, direction is given that the verdict be set aside and the case be dismissed on the ground that no cause of action was set out in the petition.

Judgment on the cross-hill of exceptions reversed; main hill of exceptions dismissed.

All the Justices concur, except Holden, J., ■who did not preside.  