FOURTH DIVISION

DILLARD, P. J.,

MERCIER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

April 26, 2022

In the Court of Appeals of Georgia

A22A0289. HENDERSON et al. v. FISHER et al.

DILLARD, Presiding Judge.

Chad Richard Henderson and Henderson Legal, LLC, appeal from the trial

court’s denial of their motion to transfer venue in a case brought by Edna Thomas

Fisher and Mary Anderson Fisher. In doing so, Henderson and Henderson Legal

argue the trial court incorrectly concluded that the Fishers are seeking title to land and

thus the only court capable of granting them title is in the county where the land sits.

For the reasons set forth infra, we reverse.

In considering the trial court’s ruling on a motion to transfer venue, we will

affirm the court’s findings on disputed factual questions relating to venue “if there is

any evidence to support them,” but we review de novo its application of the law to
undisputed facts.

1 So viewed, the record shows that the Fishers owned real property

in Clayton County at 445 Autumn Drive, Riverdale, Georgia, as tenants in common.

They entered into an agreement to sell that property to defendant HRD Capital

Partners, LLC, for $85,000. Henderson was the closing attorney for the sale, so he

and his firm (Henderson Legal) prepared the closing documents. These

documents—which included a warranty deed transferring title from the Fishers to

HRD Capital—were then given to Tyrome Henderson, who was HRD Capital’s

manager but is not a licensed attorney authorized to practice law. 

According to the Fishers, on January 17, 2020, Tyrome met them at a bank,

where they all executed the closing documents in front of a notary. Tyrome then left

the bank with the executed originals, including the warranty deed, without tendering

the $84,934.20 HRD Capital owed the Fishers after closing costs or giving them

copies of the closing documents. 

According to the Fishers, five days after the closing, HRD Capital sold the

property to Best Buy Homes for $118,000, even though HRD Capital still had not

paid themfor the property. On January 27, 2020, Tyrome recorded the warranty deed,

transferring title from the Fishers to HRD Capital with the Clayton County Superior

1 Hamner v. Turpen, 319 Ga. App. 619, 620 (737 SE2d 721) (2013).

2
Court. That same day, he also recorded the deed transferring title from HRD Capital

to Best Buy Homes. The next day, Henderson wired the Fishers $39,934.20 of the

$84,934.20 that HRD Capital owed for the property, with no explanation for the

$45,000 shortfall. Then, on February 7, 2020, 21 days after the Fishers’ closing, Best

Buy Homes sold the property to a John Doe for $87,000. 

Thereafter, the Fishers filed suit claiming Henderson and Henderson Legal

were liable for legal malpractice for failing to control the closing, supervise the

recording of all documents conveying title, and verify the Fishers received all funds

from the purchaser, as well as for the negligence that allowed Tyrome and HRD

Capital to commit fraud. The Fishers also included claims of fraud against Tyrome

and HRD Capital, and breach of contract against HRD Capital. 

Citing fraud and a failure of consideration, the Fishers asked the trial court to

rescind the sale of the property to HRD Capital and cancel the deed transferring title

of the property and all subsequent deeds to the property, thereby returning title to

them. They further asked the trial court to order HRD Capital to perform its

obligations under the contract, including payment of the $45,000 still owed.

2 Finally,

2 As of the filing of their complaint, the Fishers alleged they still had not

received the $45,000 owed to them. 

3
the Fishers sought actual and punitive damages from Henderson, Henderson Legal,

Tyrome, and HRD Capital, along with attorney fees and costs. 

Henderson and Henderson Legal filed a motion to transfer venue to Cobb

County on the basis that none of the defendants are residents of or have an office in

ClaytonCounty, and the only reason the case was before the ClaytonCounty Superior

Court was because the property at issue was located in Clayton County. Further,

Henderson and Henderson Legal argued the Fishers’ claims surrounding title to land

sounded in equity, not law, so the proper venue was not where the property islocated.

Henderson and Henderson Legal sought to transfer venue to Cobb County because

it is the county of residence for Tyrome and the principal place of business for HRD

Capital. 

In response to the motion, the Fishers argued that while they were seeking

certain equitable remedies with regard to the land, including rescission of the sale and

cancellation of the warranty deed transferring title to HRD Capital, they also sought

to divest all parties in the chain of title of their title and invest the title back in them.

Thus, they argued divestment and bestowment of title necessarily involve title to land,

making venue proper in Clayton County where the property is located. 

4
The trial court denied Henderson and Henderson Legal’s motion to transfer

venue, concluding the Fishers’ complaint concerned title to land. The court agreed

with the Fishers that the divestment and bestowment of title necessarily involve title

to land, and that the complaint is, in part, an action to recover the Fishers’ land based

on their title. The court also noted that the Fishers claimed the consideration for the

sale of the property had failed, and if there was no sale, then legal title to the property

remains in their names. The court further explained that the claims against multiple

defendants arose out of the same set of facts and circumstances as the claims

involving title to the property, and the only venue and jurisdiction that can address

the issue of title is Clayton County. Moreover, the court found that no other superior

court in Georgia would have authority to order the reconveyance of title to the

property other than the Clayton County Superior Court. Even so, the court certified

its decision for immediate review. This interlocutory appeal follows. 

Henderson and Henderson Legal contend the trial court erred in concluding

venue was proper in Clayton County when no defendant resides in Clayton County

and the suit sounds in equity, not law. We agree.

The Georgia Constitution provides that “[c]ases respecting titles to land shall

be tried in the county where the land lies,” while “[e]quity cases shall be tried in the

5
countywhere a defendantresides against whomsubstantialrelief is prayed.”3 And the

common test as to whether an action to recover land is one respecting title to land

within the meaning of our Constitution is if “the plaintiff can recover on his title

alone, or whether he mustseek the aid of a court of equity in order to recover.”4 Thus,

if the plaintiff, “without resorting to the powers of the superior court as a court of

equity and without invoking equitable relief, can, upon her legal title, recover, the suit

is well brought in the county where the land lies[.]”

5 But if in order to “vest herself

with a legal title upon which she can recover at law, it becomes necessary at first to

3

 GA. CONST. Art. VI, Sec. II, Pars. II-III.

4

Strickland v. McElreath, 308 Ga. App. 627, 629 (708 SE2d 580) (2011);

accord State Highway Dep’t v. Ga. S. & F. Ry. Co., 216 Ga. 547, 548 (1) (117 SE2d

897) (1961); Payne v. Terhune, 212 Ga. 169, 170 (91 SE2d 348) (1956); see Frazier

v. Broyles, 145 Ga. 642, 642 (89 SE 743) (1916) (“One test as to whether a suit to

recover land is one of ejectment simply, and is a case ‘respecting title to land,’ is

whether the plaintiff can recover on his title alone, or whether he must ask the aid of

a court of equity in order to recover.”).

5

Strickland, 308 Ga. App. at 629; accord Sternbergh v. McClure, 217 Ga. 278,

280 (1) (122 SE2d 217) (1961); Brown v. Martin, 137 Ga. 338, 345 (1) (73 SE 495)

(1912); Martin v. Gaissert, 134 Ga. 34, 39 (1) (67 SE 536) (1910); Clayton v. Stetson,

101 Ga. 634, 638 (28 SE 983) (1897).

6
assert an equity as against the person invested with legal title, then the action should

have been brought in the county wherein the defendant resided.”6

As the Supreme Court of Georgia has explained, cases “respecting titles to

land” under our Constitution are actions at law, “such as ejectment and statutory

substitutes, in which the plaintiff asserts a presently enforceable legal title against the

possession of the defendant, for recovery of land or recovery of the land and mesne

profits.”7 And a petition to set aside a deed is not a suit respecting title to land, “but,

instead, is a suit in equity that must be brought in the county of the defendant’s

residence.”8

6

Strickland, 308 Ga. App. at 629; accord Sternbergh, 217 Ga. at 280 (1);

Brown, 137 Ga. at 345 (1); Gaissert, 134 Ga. at 39 (1); Clayton, 101 Ga. at 638.

7

Schuehler v. Pait, 239 Ga. 520, 523 (2) (238 SE2d 65) (1997); accord Hayes

v. Howell, 251 Ga. 580, 581 (1) (308 SE2d 170) (1983); Southall v. Carter, 229 Ga.

240, 243 (190 SE2d 517) (1972); Grand Lodge of Ga., Indep. Ord. of Odd Fellows

v. City of Thomasville, 226 Ga. 4, 5 (1) (172 SE2d 612) (1970); White v. Gordon, 213

Ga. 730, 731 (1) (101 SE2d 759) (1958); Owenby v. Stancil, 190 Ga. 50, 55 (2) (8

SE2d 7) (1940).

8

Strickland, 308 Ga. App. at 629; see Deen v. Altman, 267 Ga. 111, 112 (2)

(475 SE2d 611) (1996) (“[A]n action to cancel a deed conveying land based upon

allegations of fraud is not a suit respecting title to land but is an equitable action that

must be brought in the county of residence of the defendant.”); Hawkins v. Pierotti,

232 Ga. 631, 631 (208 SE2d 452) (1974) (“An action by a grantor to cancel a deed

conveying land, which she alleges was obtained fromher by the grantees by fraud and

coercion, is not a suit respecting the title to land within the meaning of the

7
Here, the Fishers seek to cancel the conveyance of the land at issue on two

bases:fraud and failure of consideration. As a result, Henderson and HendersonLegal

argue this case is analogous to Strickland v. McElreath,

9

in which this Court

determined that case was in equity when the plaintiffs alleged fraud and breach of

fiduciary duty and sought title as relief.10 They also distinguish this case from

Southall v. Carter,

11

on which the trial court relied, because that case concerned a

statutory partition action, in which the parties could recover on title alone, and the

parties were not seeking to establish title to land or evidence of title. 

In Southall, our Supreme Court concluded that “a statutory partition action in

this State, which can bestow title on both parties and divest both parties of title, is a

case ‘respecting titles to land,’ and proper venue is in the county where the land is

Constitution . . . , but is an equitable action, and must be brought in the county of the

residence of the defendants[.]”); Borden v. I. B. C. Corp., 220 Ga. 688, 690 (1) (141

SE2d 449) (1965) (“A petition to set aside and cancel a deed is not such a suit

respecting title to land as must be brought in the county where the land lies, must be

brought, if the defendantresidesin this State, in the county of hisresidence.” (citation

omitted)).

9

 308 Ga. App. 627 (708 SE2d 580) (2011).

10

See id. at 629.

11

 229 Ga. 240 (190 SE2d 517) (1972).

8
situated.”

12 Additionally, the SouthallCourt noted the partiesin that case owned legal

title to the land astenants in common, and the appellantsought to recover her portion

of the land and possession of her portion of the land on the basis of her legal title.13

In stark contrast, there is no claim regarding a statutory partition of land in this

case, and the Fishers’ lawsuit will not divest both parties of title, as it is undisputed

that legal title currently belongs to defendantJohn Doe.14

Instead, the Fishers seek to

rescind the sale and cancel the conveyance of the land, partially on the basis of fraud.

Indeed, they specifically invoke the trial court’s equitable powers in making this

claim. So, while the Fishers are requesting that the court “divest” title from all parties

in the chain of title and “bestow” the title upon them as plaintiffs, they are essentially

asking the court to cancel a deed conveying land based upon allegations of fraud. And

12

Id. at 243.

13

See id. at 243-44.

14

See Schuehler, 239 Ga. at 523-24 (2) (holding that case was one in equity to

establish the appellants’ title to the land when they admitted title to the land was

vested in the appellees, but claimed the trial court should declare title in the

appellants and that upon equitable title being established in the appellants a statutory

partitioning of the land should be made).

9
our Supreme Court has concluded that such an action is not a suit respecting title to

land but is instead an equitable action.

15

Additionally, the Fishers claim the consideration for the sale failed, causing

title to the property to remain with them. But whether this claim has merit,

16

it too is

equitable in nature because the basisfor the claim does not respect title to land asthat

phrase is explained supra.

17

In fact, the claim is essentially that, although the

15

 See supra note 8 & accompanying text.

16

See Cook v. Grimsley, 175 Ga. 138, 142-43 (165 SE 30) (1932) (“[P]erhaps

the cardinal rule, by which to determine the character of the action is to ascertain the

intention of the pleader as disclosed by the allegations and prayers of the petition. .

. . In the present case we are considering mainly the matter of jurisdiction, and not the

question of the plaintiff’s ultimate right to the relief prayed for.”).

17

See Slaick v. Arnold, 307 Ga. App. 410, 411-12 (705 SE2d 206) (2010)

(quoting transfer order from Supreme Court to Court of Appeals, which explained

that “appellee did not dispute appellant’s record ownership of the property at issue;

instead, appellee sought a judicial declaration that appellant’s deed was void for

variousreasons including lack of valid consideration” and, “[t]herefore, this case does

not come within this Court’stitle to land jurisdiction”);see also Dawson v. Altamaha

Land Co., 215 Ga. 700, 703 (1) (113 SE2d 129) (1960) (“[L]ooking to the facts

alleged by the plaintiff and the nature and character of the relief sought, we are of the

opinion that this is a case in equity . . . , which a court of equity, under the alleged

circumstances of this case, has a right to adjudicate.”).

10
agreement and transfer were valid at first, HRD Capital’s subsequent failure to pay

as promised is a basis to cancel the transaction.

18

In light of the foregoing, this is an equity case, not a case respecting title to

land.

19 As a result, the proper venue is not where the property at issue is located, but

the county where a defendant resides.

20 As a result, the trial court erred in denying

18 Cf. Barrett v. Simmons, 235 Ga. 600, 601 (1) (221 SE2d 25) (1975) (“A

promise to pay constitutes consideration. Failure to pay the consideration promised,

although it constitutes a breach, does not render the conveyance invalid for lack of

consideration.”); Slaick , 307 Ga. App. at 412 (1) (same). We reject the Fishers and

trial court’s reliance upon Deadwyler & Co. v. Karow & Forrer, 131 Ga. 227 (62 SE

172) (1908), because that case is inapposite to the contentions at issue in this

appeal—having dealt with an impossible ascertainment of consideration. See id. at

232 (explaining that when “the consideration for the sale of property is to be

determined by ascertaining its quantity, and meanwhile this is rendered impossible

by reason of its destruction, . . . the sale fails, because the consideration becomes

impossible of ascertainment”).

19

See supra note 8 & accompanying text; see also Ball v. Brunswick Pulp &

Paper Co., 248 Ga. 106, 106 (1) (281 SE2d 571) (1981) (“The action is in equity

rather than being an action respecting title to land because the plaintiffs cannot

recover on the strength of their own title; rather, they must rely upon the aid of a court

of equity to set aside the timber contract and lease.”); Fowler v. S. Airlines, 192 Ga.

845, 845 (1) (16 SE2d 897) (1941) (Syllabus by the Court) (“A suit to enjoin a sale

of land, and to cancel a security deed thereon, is not a suit respecting title to land

within the meaning of the constitution of this State, but an equity case.” (citation

omitted)).

20

See supra note 6 & accompanying text; see also Screven Cty. v. Reddy, 208

Ga. 730, 731 (1) (69 SE2d 186) (1952) (“Where a petition shows that the defendant

haslegal title to the land and seeksto set up a perfect equity in the plaintiff, and prays

11
Henderson and Henderson Legal’s motion to transfer venue from Clayton County to

Cobb County.

21

For all these reasons, we reverse the trial court’s judgment.

Judgment reversed. Mercier and Markle, JJ., concur.

that the property be decreed to be that of the plaintiff, such action cannot be brought

in the county where the land lies if the defendant be not a resident thereof.”).

21 Cf. Bradley v. Burns, 188 Ga. 434, 437 (1 ) (4 SE2d 147) (1939) (“[W]e find

that the petition showed that the plaintiff had no title, and that only after relief in

equity decreeing title in him would he have an action at law for recovery of the land;

and since, as ruled above, he would be entitled to such equitable relief against

[appellant] only when suit is brought therefor in the county where he resides, the

demurrer should have been sustained and the action dismissed.”).

12