Perry v. Gormley

• Decision Date: 09 February 1937
• Docket Number: 11613.
• Citation: 189 S.E. 850,183 Ga. 757
• Parties: PERRY v. GORMLEY, Superintendent of Banks, et al.
• Court: Georgia Supreme Court

189 S.E. 850

183 Ga. 757

PERRY v. GORMLEY, Superintendent of Banks, et al.

No. 11613.

Supreme Court of Georgia

February 9, 1937

Error from Superior Court, Burke County; A. L. Franklin, Judge.

Suit by R. E. Gormley, Superintendent of Banks, and others against C P. Perry. Judgment overruling demurrers and granting interlocutory injunction, and defendant brings error.

Affirmed.

RUSSELL C.J., and ATKINSON, J., dissenting in part.

Pierce Brothers, of Augusta, and Joseph Law, of Waynesboro, for plaintiff in error.

H Cliff Hatcher, of Waynesboro, and A. S. Bradley and Guy Alford, both of Swainsboro, for defendants in error.

HUTCHESON Justice.

1. A petition, seeking cancellation of a security deed and injunction against a sale under power contained therein, alleging that the debt for which the deed was given to secure has been paid, and that the parties plaintiff are the administratrix of the estate of the grantor in the deed, a holder of a lien junior to the security deed, and the owner of a one-half undivided interest in the lands therein conveyed, of whose interest the defendant grantee had notice at the time the deed was executed, is sufficient to set forth a cause of action for the relief prayed for, as against a general demurrer.

2. Such a petition is not demurrable on the ground of multifariousness, or of misjoinder of parties plaintiff, or that the interests of the plaintiffs are antagonistic and divergent. All of the plaintiffs have an interest in the realty, and have a common interest in seeking to enjoin a sale thereof and cancellation of the deed thereto. Code, § 37-1007; Conley v. Buck, 100 Ga. 187, 28 S.E. 97; Blaisdell v. Bohr, 68 Ga. 56 (3); White v. North Georgia Electric Co., 128 Ga. 539, 541, 58 S.E. 33.

3. In such a petition allegations that the debt secured by said deed has been paid and fully satisfied; that the last payment thereon was made on a certain day, by check for a certain sum payable to the husband of the grantee in said deed, who was duly authorized by the grantee to accept said payment in full; that said payment had been agreed upon between the grantor and the grantee as the balance due; that the grantor in said deed is now dead; that he kept no books of account, depending chiefly upon his canceled checks and bank statement; that his papers and effects were badly scattered; that petitioners have used utmost diligence, and they have been unable to ascertain the dates, methods, and times of previous payments, so as to plead the same, but that said payment alleged was in full, final, and complete settlement of all amounts due the grantee on the indebtedness secured by the deed in question; are sufficient as against special demurrers on the grounds that the allegations of payment are mere conclusions of the pleader and do not show when, how, and to whom payment was made. Epstein & Bro. Co. v. Thomas, 15 Ga.App. 741, 744, 84 S.E. 201; Vinson v. Garland, 41 Ga.App. 601, 154 S.E. 158.

4. It is impossible to define satisfactorily what would be orderly and distinct paragraphs within the purview of the Code, § 81-103,. requiring that "petitions in the superior courts for legal or equitable relief or both shall set...