Pass v. Pass
| Decision Date | 12 November 1942 |
| Docket Number | 14304. |
| Parties | PASS v. PASS. |
| Court | Georgia Supreme Court |
Rehearing Denied Dec. 4, 1942.
Syllabus by the Court.
1. Where an equitable petition shows that the petitioner is indebted to the defendant on a note that is not due, and that the note will be paid maturity, this is not such debt as will require payment or tender before institution of the suit in equity, in order to prevent dismissal on demurrer.
2. Under the pleadings and the evidence, the judge was authorized to find that the plaintiff was entitled to an interlocutory injunction restraining the defendant from enforcing a judgment, pending the plaintiff's application for homestead.
Mrs Fennie L. Pass filed her petition against Mrs. Grady Pass as plaintiff in fi. fa., and Arthur Bell as sheriff of Hall County. She charged that she was the owner of a certain described piece of land in Hall County, which had been levied on by a deputy sheriff under an execution issued from the superior court of Hall County, in favor of Mrs. Grady Pass and against the plaintiff and W. L. Pass as defendants, in the sum of $300, and that the property was advertised and would be sold on the first Tuesday in June, 1942, unless enjoined.
She stated that the Shadburn Banking Company held a deed to secure a debt of $75, which was not due, on thirty-three acres of this land, but that the debt would be fully discharged and paid off by her on its due date in June; that she had applied to the ordinary of Hall County for a constitutional homestead on the ground that she was an aged and infirm person, sixty-nine years old; that the particular piece of land was located near Buford, and was the home place of the plaintiff and her husband, W. L. Pass, a man over seventy years old, who had no property and was unable to work, his only income being an old-age pension received from his county; she stated that she had asked the ordinary to have the county surveyor go on this land, survey it, make a plat thereof, and place a valuation thereon, all costs therefor being paid by her; that the property was worth not more than $800, and that unless a court of equity should intervene and enjoin the sale of the property it would be sold, and in all probability would bring much less than the value placed on it by her. She prayed that the defendants be enjoined from bringing on a sale of the property until her application be passed upon and finally determined. She attached as exhibits (a) copies of the notice by the deputy sheriff of the levy on the property, the advertisement of the sale to satisfy said judgment, principal, interest, and costs, and the obligation of $75 for which Shadburn Banking Company had formerly held a deed to secure a debt, but which had been paid off and transferred to Mrs. Grady Pass on a reconveyance made to Mrs Fannie L. Pass for the purpose of levy and sale; (b) copy of her application for homestead, including a schedule or list of creditors, costs due the officers of court, and record of filing by the ordinary.
The judge passed an order restraining the defendants, their agents, and deputies, from doing the things complained of in the petition, particularly from selling the land described.
On the day set for hearing on the rule to show cause, Mrs. Grady Pass demurred to the petition, on the grounds that it sets forth no cause of action; and that it 'fails to set forth any ground for equitable relief, and does not plead a tender sufficiently, and shows on its face the plaintiff has not done equity in the case.' She answered, admitting the allegations as to residence and jurisdiction, the description and ownership of the land by the plaintiff, and the levy of the execution and advertisement for sale of the property.
Answering further, Mrs. Grady Pass said that the plaintiff executed and delivered to the Shadburn Banking Company a deed to secure the payment of the debt which was evidenced by a promissory note containing a homestead waiver, and that after having obtained a judgment against the plaintiff for $300 principal with costs, and being unable to find any other property on which to levy the fi. fa., she tendered to the Shadburn Banking Company the amount of money ($75) necessary to pay off the indebtedness due to it by the plaintiff, and under the Code, § 39-201, had a deed made from the Shadburn Banking Company to the plaintiff, which was filed and recorded before the levy; that before she took up the debt from the Shadburn Banking Company she notified the plaintiff that she had applied to have said deed made in order that she might levy and sell the property under said execution in her favor. Mrs. Grady Pass neither admitted nor denied that the plaintiff had applied to the court of ordinary for a constitutional homestead, that the plaintiff was an aged and infirm person, or that she had asked the ordinary to have the county surveyor go on the land, survey it and make a plat thereof.
She denied the allegations that the land out of which plaintiff had applied for a homestead was located near Buford, and was the home place of the plaintiff and her husband, who had no property and who was unable to work, his only income being an old age pension he received from the county, and that the property was worth $800, and unless a court of equity intervene the property would be sold, as stated, and in all probability would bring less than the value placed upon it by the plaintiff.
The defendant also denied that plaintiff had no remedy at law. She answered that the plaintiff knew that she had paid to the Shadburn Banking Company the amount due to it and had a deed filed and recorded; and that no tender was made to the defendant of the amount due before the filing of the petition, and no tender at all other than an offer of the principal by the plaintiff's attorney; that there was no offer to pay the costs of levy and advertising and the costs of court accruing up to the time the petition was filed; that the plaintiff, having stood by and seen the defendant incur the expense of paying to Shadburn Banking Company the amount due it, and of having a levy made, and the costs of advertising said property, and having waited until May 30 to present and file her petition to enjoin the sale, when the property had been advertised for sale on June 2, 1942, and having stood by with full knowledge of all the facts and having failed to make any application to have a homestead assigned until May 28, 1942, after judgment had been rendered in January, 1942, the plaintiff was estopped from asserting her right of homestead as against the defendant, Mrs. Grady Pass; that under the Code the defendant was entitled to all the rights and privileges existing in favor of Shadburn Banking Company, and that she was entitled to have said property sold to satisfy the debt due the Shadburn Banking Company as against any right of homestead that existed in the plaintiff, since the plaintiff in writing expressly waived any right to a homestead exemption as against said debt; that the plaintiff contracted with the Shadburn Banking Company to pledge to it the property described in her petition, to secure the payment of the debt due to the Shadburn Banking Company, and that said pledge and security should be applicable to any other indebtedness or liability that the plaintiff might owe to the owner of the note, and that the defendant, Mrs. Grady Pass, was the owner of the note and became entitled to the benefit of the homestead waiver and the security afforded by said deed for all the indebtedness due by the plaintiff to her, and that the plaintiff was not entitled to prevent the sale of the property by homestead or otherwise, and that the relief sought by the plaintiff should be refused by the court, and that defendant should be declared entitled to a judgment against the plaintiff for all costs incurred, etc.
Upon the hearing the plaintiff introduced her petition as an affidavit in evidence. Her counsel stated that he had offered to pay counsel for the defendant $75, the amount of the principal of the Shadburn Banking Company note, after the suit had been filed, but had not offered to pay any costs; and he stated that he did not know whether the offer was a continuing tender.
The defendant tendered in evidence her answer as an affidavit; also the note for $75, and the security deed. The note contained the usual homestead waiver, as well as a provision to the effect that the security deed should be made applicable to the payment of the note as well as to any other indebtedness or liability of the undersigned to the holder. The deed was in conformity with City Code, 1910, § 3306 et seq., and had the usual provision that it was made to secure the particular indebtedness or any other indebtedness.
It appeared that the note had been transferred and assigned by Shadburn Banking Company to Mrs. Grady Pass before the...
To continue reading
Request your trial
-
14309, Hughes v. Cobb
... ... parties in reference to the subject-matter of the suit.' ... § 37-105. Referring to the principle, in Pass v. Pass, 195 ... Ga. 155, 23 S.E.2d 697, it was ruled that 'the judge in ... seeking to do complete justice, which it was his duty to do ... under ... ...
- Hughes v. Cobb, s. 14308, 14309.
- McAlhany v. Allen
-
Reardon v. Bland
...See also Georgia Baptist Orphans Home v. Moon, 192 Ga. 81, 14 S.E.2d 590; Cooper v. Peevy, 185 Ga. 805, 196 S.E. 705; Pass v. Pass, 195 Ga. 155, 160, 23 S.E.2d 697; Durham v. Crawford, 196 Ga. 381, 389, 26 S.E.2d 778. 3. Where a summary proceeding is instituted under Code § 61-301 et seq., ......