The instant suit is one in ejectment for the recovery of land, filed in Dawson County where the land lies. The suit relied upon in the plea of res judicata or estoppel by judgment was a proceeding in trespass to recover damages to realty, and was filed and tried in Hall County, the residence of a defendant against whom substantial equitable relief was sought. The land sued for in the instant case is part of the same land involved in the Hall County case.
The constitution (Code, § 2-4302), provides: "Cases respecting titles to land shall be tried in the county where the land lies, except where a single tract is divided by a county line, in which case the superior court of either county shall have jurisdiction." The land here involved lies in Dawson County. The previous Hall County suit, the proceedings of which are set forth fully in the plea of res judicata or estoppel by judgment, show that suit to be one for injunction and damages to realty; and while both the plaintiff and the defendant claimed and sought to establish title to the realty, yet the title was only incidentally involved, as illustrating the right to recover damages.
A suit is not one "respecting title to land" where the title to the land is only incidental or collateral to the main issue.Bivins v. Bivins, 37 Ga. 346; Powell v. Cheshire,70 Ga. 357 (48 Am. R. 572); Moore v. O'Barr, 87 Ga. 205 (13 S.E. 464); Black v. Fritz, 98 Ga. 32 (25 S.E. 188);Huxford v. Southern Pine Co., 124 Ga. 181 (supra); Robins v. McGehee, 127 Ga. 431, 436 (56 S.E. 461). Where it is sought to determine and adjudicate title to land, not as incidental or collateral to another question, but as a primary issue which would be conclusive as to title as provided by the Code, § 33-119, such issue must be tried in the county where *Page 67 the land lies. And where, in a suit in Hall County, title to land in Dawson County is only incidentally or collaterally involved, a judgment or decree determining and awarding the title to land in Dawson County would be void for lack of jurisdiction of the subject-matter. Code, § 110-709; Towns v. Springer, 9 Ga. 130;Beverly v. Burke, 9 Ga. 440 (9) (54 Am. D. 351);Deans v. Deans, 164 Ga. 162 (137 S.E. 829); Wilson v.Wilson, 170 Ga. 341 (3) (153 S.E. 10); Allen v. Baker,188 Ga. 696 (4 S.E.2d 642). Where a court has no jurisdiction of the subject-matter of a suit, the parties cannot waive it either by appearance and pleading or otherwise. Epps v. Buckmaster, 104 Ga. 698 (2) (30 S.E. 959); Smith v.Ferrario, 105 Ga. 51, 53 (31 S.E. 38); Cutts v.Scandrett, 108 Ga. 620 (3) (34 S.E. 186).
The majority opinion does not predicate its solution of the case on the above-quoted rules of law, but determines the issue on the basis that the suit for land in Dawson County is estopped by the judgment rendered in Hall County. In the Hall County suit, the principal issue was damage to realty. In order to determine whether there was damage or not, and if so how much, the ownership, or title, to the land was only incidentally involved; and determining this question as an incident to the right to recover damages could not be construed as a judgment as to the title of land which would act as an estoppel in an ejectment suit in Dawson County for the same land. The courts of Hall County have no jurisdiction to determine the title to land in Dawson County, either directly or indirectly. There is no principle of law or procedure more firmly embedded in our system of jurisprudence than that disputes over land titles must be adjudicated in the superior court of the county where the land lies. To extend the doctrine of estoppel by judgment, so that the judgments of the courts of one county can in effect adjudicate the titles of land in another county, would be entering upon an uncharted field, the effect of which would be to circumvent the constitutional provision that "cases respecting titles to land shall be tried in the county where the land lies" (Code, § 2-4302), and thereby do indirectly what can not be done directly. Applying the doctrine of estoppel by judgment to the extent appearing in the majority opinion would subject the title of the most valuable piece of realty in the State to adjudication in another county and in a justice's court, a *Page 68 county court, or a city court, if the owner instituted a common-law suit against a former tenant for rent, and the tenant defended by alleging ownership of the property. The same situation might also apply to foreign judgments, if the suit for rent was against a resident of another state. No judgment should be used to estop the procurement of another judgment, unless the judgment so used is one of a court having jurisdiction to determine the question covered by the judgment that is sought to be used as an estoppel. A judgment is not conclusive on any point or question which, from the nature of the case, the form of action, or the character of the pleadings, could not have been adjudicated in the suit in which it was rendered. "The record of a former suit between the same parties is not admissible in evidence in support of a plea of estoppel by judgment, when it appears therefrom that the subject-matter of the second suit could not have been litigated under the pleadings in the first."Halliday v. Bank of Stewart County, 128 Ga. 639 (2) (58 S.E. 169). See also, Pollock v. Gilbert, 16 Ga. 398 (6) (60 Am. D. 732); Vada Naval Stores Co. v. Sapp, 148 Ga. 677,682 (98 S.E. 79); 34 C. J. 935, § 1339; 30 Am. Jur. 940, § 201.
The case of Garrick v. Tidwell (supra), cited in the majority opinion, is not authority for the position there taken. That case and Tomlinson v. Driver, 53 Ga. 9, Hammond v.Thornton, 107 Ga. 259 (33 S.E. 183), and Irvin v.Spratlin, 127 Ga. 240 (55 S.E. 1037, 9 Ann. Cas. 341), which are there cited are all different as to facts and in principle from the instant case. In the Garrick, Tomlinson, and Irvin cases, there had been proceedings against tenants holding over, under what in the present Code are sections 61-301 et seq.; and in each case the proceedings were defended on the ground that title was in the defendant. Those decisions simply hold that in such cases title has been determined and adjudicated, and that this judgment could be pleaded as an estoppel against a subsequent suit for the land instituted by the losing party. In the Irvin case, both the former and latter actions were suits for land. In all of those cases where the judgment of a former proceeding was held to be an estoppel as against subsequent suits for land, the prior judgment was one that had been rendered by the superior court of the county wherein the land was situated.
If, in the Hall County suit, the title to the land was only incidentally involved, it would not be a suit respecting title to land *Page 69 so that such judgment could be pleaded in bar to a suit in ejectment in Dawson County; and if the Hall County suit be construed to the effect that the title to the land was not just incidentally involved, but was directly in issue and the title thereto adjudicated by the judgment therein rendered, then the judgment is void for lack of jurisdiction of the subject-matter. In neither view, would a plea of res judicata or estoppel by judgment, based thereon, withstand a general demurrer.
I do not concur in the majority opinion for another and more specific reason as to why the doctrine of estoppel by judgment does not apply. The Hall County suit was one for damages on account of trespass. The adjudication of title was not essential to a determination of the issues. The right of possession and use of the land was controlling as to whether the plaintiff was entitled to damages, and if so how much. Damages for trespass are based, not upon title, but upon the right of possession and use. Code, § 105-1403; McDonough v. Carter, 98 Ga. 703 (25 S.E. 938). A tenant may have a right of action against his landlord for trespass. Connally v. Hall, 84 Ga. 198 (10 S.E. 738). The Hall County case was a damage suit for trespass, and the fact that title was pleaded as a defense would not authorize the judgment there rendered to be an estoppel in the instant case, since evidence of title was material, not as establishing title, but only as illustrating the right of possession and use.
In Sumner v. Sumner, 186 Ga. 390 (2) (supra), where the doctrine of estoppel by judgment is defined, the court states two instances where it applies: (a) "Only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered;" and (b) "Such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined." It will be noted that both instances provide that the matters (sought to be used as an estoppel) shall be "within the scope of the pleadings;" and this provision would preclude the doctrine of estoppel by judgment from applying in the instant case, for the reason that, even though the defendant in the Hall County case pleaded title, the title was not within the scope of the pleadings. "Scope" means "that at which one aims; that which is purposed to be *Page 70 reached or accomplished; ultimate design, aim, or purpose; intention; object." Webster. The scope of the pleadings in the Hall County case was to set forth the right of possession and use, and any allegation of title was not the scope of the pleadings, but mere allegation of evidence indicating the right to the possession and use. Within the scope of the pleadings does not mean within the contents of the pleadings. The phrase, "scope of the pleadings," must be construed as the ultimate design and object of the pleadings; and their scope should not be determined and controlled by particular allegations therein, even though the effect of such allegations would be evidence to aid or establish the ultimate object and design. As an illustration of this distinction, suppose a man who had been using my realty moved to another county and I there sued out a distress warrant before a justice of the peace, to which a counter-affidavit was filed on the ground that the defendant had title to the property; and upon the trial the justice of the peace gave a judgment for the defendant; could the defendant then return, take possession of the realty, and use this judgment as an estoppel to an ejectment suit by me? Under the majority opinion, he could, but I do not think so. The scope of his counter-affidavit was a denial of the relation of landlord and tenant, and his assertion of title was no more than an allegation to negative this relationship, as a denial of this relationship was the scope — the design, aim, purpose, object — of his counter-affidavit.