Lathrop v. Miller, (No. 5613.)

• Decision Date: 16 April 1927
• Docket Number: (No. 5613.)
• Citation: 138 S.E. 50,164 Ga. 167
• Parties: LATHROP. v. MILLER et al.
• Court: Georgia Supreme Court

164 Ga. 167

138 S.E. 50

LATHROP.

v.MILLER et al.

(No. 5613.)

Supreme Court of Georgia.

April 16, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Petition by Mrs. Willie Mae Lathrop against William S. Miller and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Morris Macks and Leon C. Greer, both of Atlanta, for plaintiff in error.

Alston, Alston, Foster & Moise, Underwood & Haas, and Wm. Wallace Lyons, all of Atlanta, for defendants in error.

HILL, J. Mrs. Willie Mae Lathrop filed her petition against William S. Miller, City Savings Bank, Piedmont Savings Company, and J. F. Lewis, deputy sheriff, to enjoin the defendants from proceeding with a dispossessory warrant sued out against her by Wm. S. Miller, on the ground that she was his tenant holding over beyond her term of tenancy, and of failure to pay the rent due. The petition alleged, in substance, that the plaintiff was not the tenant of Wm. S. Miller, and that she was in possession of the premises in controversy under a bond for title from Miller to her; that she purchased the property from Miller for the sum of $2,750, payable $300 in cash, and assuming a loan of $1,500, and gave her 38 notes, payable monthly, for $25 each; that she paid the semiannual interest coupons on the loan, and paid twelve of the notes, amounting to $300, and interest; that the notice for dispossession served on her by the deputy sheriff named no stated premises from which she was directed to vacate, and was therefore void; that the City Savings Bank, under a power of sale in the security deed made to it, declared the entire loan due (although plaintiff was not in arrears for two interest coupons), and sold the property to Piedmont Savings Company which held the notes she had given for the purchase price of the property; that the sale was in October, 1925; that City Savings Bank sold the property to Piedmont Savings Company; that Wm. S. Miller placed a new loan of $1,500 on the property in favor of City Savings Bank in December, 1925, while Miller had no title to the property; that Piedmont Savings Company made a deed to the property in controversy to Miller in February, 1926, and Miller then placed another loan on the property in favor of Piedmont Savings Company for $1,400; that, owing to plaintiffs poverty, she is unable to make a bond to resist the dispossessory warrant; that all of the defendants had perpetrated both legal and actual fraud upon her, and had damaged her in the sum of $2,000; that the several transactions set out above, to which all of the defendants, except the sheriff, were parties, constitute the fraud; and that Wm. S. Miller is insolvent. Plaintiff prays for a cancellation and rescission of the entire contract, and that she recover the money she has paid, besides damages in the sum of $2,000. The defendants filed their answers, admitting certain of the allegations of the petition, denying others, and averring that for want of sufficient information they could neither admit nor deny certain other paragraphs of the petition. City Savings Bank and Piedmont Savings Company filed general demurrers. Evidence was introduced on both sides, after which the court passed an order denying the injunction prayed for and dismissing the petition except as to Wm. S. Miller, but sustaining the general demurrers, as above stated, and ordering the sheriff to proceed to evict the plaintiff under the dispossessory warrant and notice by a stated time. To this ruling the plaintiff excepted.

We are of the opinion that the court did not err in sustaining the demurrer and dismissing the petition as to City Savings Bank and Piedmont Savings Company, nor, under the facts, in dissolving the restraining order theretofore granted to take effect from a certain date, and in ordering that the deputy sheriff on that date proceed to execute the dispossessory warrant in occordance with the notice theretofore given to the plaintiff in error. It is insisted by the plaintiff that this judgment of the court was error; that it undertook at the interlocutory hearing to deprive plaintiff in errorof the right of trial by a jury on the question of fraud, rescission, cancellation, and damages, which is the province of the jury, and to pass upon all the disputed issues of fact, "especially the...