Planters Cotton Oil Co. v. McCurley

• Decision Date: 08 February 1945
• Docket Number: 15061.
• Citation: 33 S.E.2d 270,199 Ga. 104
• Parties: PLANTERS COTTON OIL CO. v. McCURLEY.
• Court: Georgia Supreme Court

33 S.E.2d 270

199 Ga. 104

PLANTERS COTTON OIL CO. v. McCURLEY.

No. 15061.

Supreme Court of Georgia

February 8, 1945

Rehearing Denied March 7, 1945.

Syllabus by the Court.

1. A petition praying for the cancellation of a deed and other equitable relief may be brought in the county of the residence of the grantor or in that of the grantee.

2. Where land is set aside to the widow and minor children as a year's support, the widow is vested with the exclusive right to control the property; and, where one of the children executes a security deed conveying the land and the widow files a petition seeking a cancellation thereof as a cloud upon her title, the petition is not subject to general demurrer on the ground that it fails to allege a cause of action.

Mrs Sula McCurley filed in Hart superior court, jointly against H. W. McCurley, a resident of Hart County, and the Planters Cotton Oil Company, a resident of Richmond County, a petition which alleged substantially the following: In 1924 described land was set apart as a year's support to the petitioner and her four minor children. The children are now sui juris and are no longer beneficiaries of the year's-support estate. On March 30, 1939, H. W. McCurley, one of the children, executed and delivered to the Planters Cotton Oil Company a security deed covering a portion of the land set apart as a year's support. The deed of H. W. McCurley 'constituted The Planters Cotton Oil Company, * * * its successors and assigns, his attorney in fact, to sell the real estate' at public outcry before the courthouse door in case of default. H. W. McCurley was without legal authority to encumber any portion of the year's-support estate, and therefore the security deed is ineffectual in so far as it undertakes to vest in the Planters Cotton Oil Company any title or interest in such land. The Planters Cotton Oil Company is seeking, under the powers contained in the security deed, to sell the land therein described. The petitioner can not file a claim to prevent the sale and thus avoid a multiplicity of suits. Consequently, under the circumstances set forth, she is without an adequate remedy at law to protect her rights as sole beneficiary of the year's--support estate, and can find an adequate remedy only by invoking the powers of a court of equity. The prayers were: (a) That the defendant, the Planters Cotton Oil Company, be enjoined from exercising the powers contained in the security deed, and from selling the land therein set forth; (b) that said defendant be required to surrender the security deed made to it by H. W. McCurley, and that the same be cancelled as a cloud upon the petitioner's title; (c) that process issue; (d) that a second original issue, directed to the sheriff of Richmond County, for service upon the defendant, the Planters Cotton Oil Company; (e) that the petitioner have such other relief as the facts may justify.

No response was filed by H. W. McCurley. The Planters Cotton Oil Company appeared specially through its attorney, and demurred on the grounds: (1) The petition sets forth no legal or equitable cause of action; (2) the superior court of Hart County is without jurisdiction because the defendant, the Planters Cotton Oil Company, is a resident of Richmond County, and no substantial relief is sought against H. W. McCurley, who resides in Hart County; (3) the allegations of the petition show that the petitioner has an adequate remedy at law, and no cause for restraining the sale is alleged.

The exception is to an order overruling the demurrer interposed by the Planters Cotton Oil Company.

John B. Morris, of Hartwell, for plaintiff in error.

A. S. Skelton, of Hartwell, for defendant in error.

ATKINSON, Justice (After stating the foregoing facts.)

'Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.' Constitution, art. 6, sec. 16, par. 3, Code, § 2-4303, and Code, § 3-202. 'Each case must be determined on its particular allegations, and must be decided on the nature, extent, and kind of equitable relief sought and the relationship between the parties to the action.' First National Bank of Atlanta v. Holderness, 189 Ga. 819, 822, 7 S.E.2d 682, 684. 'In an equity suit where several persons are joined as defendants, whether or not substantial equitable relief is prayed against the only defendant shown by the petition to be a resident of the county wherein the suit is brought is not to be determined alone by the nature of the prayers against the sole resident defendant, but the petition itself must be looked to; and in the absence of allegations of fact necessary to support such prayers, the petition will not be construed as a suit whereof a court of the county of his residence has jurisdiction.' Fowler v. Southern Airlines, 192 Ga 845(6), 16 S.E.2d 897, 898. The essential fact necessary to confer jurisdiction is, not that a defendant residing in the county has a substantial interest in the litigation, but whether or not substantial relief is prayed...