Once the defendant executrix was removed from the case, since her rights were inextricably involved in the questions presented, no declaratory judgment could be entered.
Mrs. A. A. Frost brought her complaint for declaratory judgment in Jackson Superior Court, naming as defendants Mrs. Floyd G. Hoard, as executrix of the estate of Floyd G. Hoard, deceased; Billy N. Elder, Clerk of Jackson Superior Court; Daniel Gazaway; and the Administrator of Veterans' Affairs. The complaint alleged that the plaintiff made several personal loans to the late Floyd G. Hoard, who in turn executed to her a deed to secure debt on certain described property; that in return for the sum of $14,676.08 the deceased also executed a promissory note to the plaintiff; the deceased made payments upon the interest on the promissory note to October 10, 1967; in return for another promissory note the plaintiff loaned the deceased $2,057.24 on which note interest payments were made to February 1, 1968; that the balance shown by the notes is now past due and the defendant executrix has failed and refused to pay the sums on demand duly made; that the entire estate of the deceased has been set aside as a year's support and the plaintiff is unable to collect sums owed her.
The complaint further alleged that the executrix, although being called upon to pay the sums owed, is now defending a suit upon the notes pending in Jackson Superior Court and has filed a counterclaim contending that the deceased performed extensive legal services on behalf of the plaintiff for which he had not been paid; that the defenses filed to the note are without any legal or factual foundation and for purposes of prolonging and delaying collection efforts of the plaintiff. It is alleged that the plaintiff has recently learned that a spurious and forged order of cancellation was given by an unknown person to the Clerk of Jackson Superior Court; that the plaintiff has never executed any cancellation of the security deed; that the purported cancellation is a forgery and invalid and should be set aside; that the clerk was without authority to enter the forged cancellation because it was not accompanied by the original security deed; that unknown to the plaintiff the deceased executed a warranty deed to the property described in the security deed to one Lottie Wilson and that subsequently the property has been sold by warranty deed to Daniel Gazaway who has executed and delivered a security deed to the Administrator of Veterans' Affairs.
The complaint avers that due to the recited circumstances, the plaintiff is unsure as to her legal position and rights and as to the procedures she should follow to obtain the debts owed her; that she is uncertain as to whether she should foreclose upon the security deed and as to whether a further delay might bar her with respect to Daniel Gazaway or the Administrator of Veterans' Affairs. The plaintiff therefore requests that the court determine (1) if the cancellation appearing on the security deed is a valid cancellation, or whether it is fraudulent, forged, and not executed by the plaintiff; (2) if the Clerk of Jackson Superior Court recorded the cancellation when the same was not accompanied by the original security deed; and (3) that the alleged counterclaim of the defendant executrix is valid or whether it should be found to be without foundation. The prayers were to make a determination as to the questions above set forth and for a temporary injunction.
The defendants filed separate motions to dismiss which were sustained by the trial judge. In case 45004 the plaintiff appeals from the order sustaining the motion to dismiss as to Daniel Gazaway and the Administrator of Veterans' Affairs. In case 45005 the plaintiff appeals from the order sustaining the motion to dismiss as to the Clerk of Jackson Superior Court. No appeal was taken from the order sustaining the motion to dismiss of the defendant executrix.
The appellees in the two cases moved to dismiss the appeal on the ground that the defendant executrix was an indispensable party and with her removal from the case no judgment could be rendered on the issues presented.
QUILLIAN, Judge.
In order to sustain an action for declaratory judgment, the legal representative of a necessary party must be included. Burgess v. Burgess, 210 Ga. 380, 382 ( 80 S.E.2d 280). "No declaration shall prejudice the rights of persons not parties to the proceeding." Code Ann. § 110-1106 (Ga. L. 1945, pp. 137, 138; 1959, pp. 236, 237). A necessary or indispensable party is essential to give a court jurisdiction of the cause. For without the inclusion of such party, no decree can be entered in favor of the complaint. See Sowell v. Sowell, 212 Ga. 351 ( 92 S.E.2d 524); Kenner v. Kenner, 214 Ga. 381 (3) ( 104 S.E.2d 896).
The instant complaint inculcates two principal questions. One is whether the counterclaim filed by the defendant executrix in the other suit pending in Jackson County was without foundation. It has been held that: "a declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding pending in a court of competent jurisdiction, in which the same questions may be raised and determined." Kiker v. Hefner, 119 Ga. App. 629, 631 ( 168 S.E.2d 637). See Darnell v. Tate, 206 Ga. 576 (2) ( 58 S.E.2d 160). Even if this were not true, no ruling with regard to such counterclaim would have any efficacy without including the executrix as a party.
The other question raised by the prayers is whether the cancellation was valid or in fact fraudulently obtained or if the cancellation entered by the clerk was not accompanied by the original security deed. Simply stated, the issue involves whether the cancellation should be declared invalid and therefore set aside.
The surrendering and cancellation of a security deed will operate to reconvey title in the property to the grantor. Citizens Bank of Moultire v. Taylor, 155 Ga. 416 (3) ( 117 S.E. 247); Waldroup v. State, 198 Ga. 144, 146 ( 30 S.E.2d 896, 153 ALR 914); Hennessy v. Woodruff, 210 Ga. 742, 744 ( 82 S.E.2d 859); Chapman v. Ayer, 95 Ga. 581, 583 ( 23 S.E. 131). Hence, seeking a declaration that the cancellation was invalid would place in question the deceased's title to the property and his rights as grantor to convey the property which under the cited authority had been reconveyed by the cancellation. A judgment to that effect would operate to divest the deceased's estate of valuable rights. As legal representative of the deceased's estate, the defendant executrix was indispensable to a determination of such issue.
We therefore are compelled to find that once the defendant executrix was removed from the case by the dismissal of the complaint as against her, no valid declaratory judgment could be entered. Thus, the appeals from the judgments dismissing the other defendants are rendered moot.
Appeals dismissed. Bell, C. J., and Whitman, J., concur.