Reardon v. Bland
| Decision Date | 13 March 1950 |
| Docket Number | No. 16978,16978 |
| Citation | 58 S.E.2d 377,206 Ga. 633 |
| Parties | REARDON v. BLAND et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the broad powers conferred by article 6, section 4, paragraph 8 of the Constitution of 1945, Code, Ann. § 2-3908, judges of the superior courts, on reasonable notice to the parties, may hear, determine, and enter final judgment on demurrers in vacation, at chambers, at interlocutory hearings, or at any time, whether before or after the appearance day of any case.
2. Before one who has given a deed to secure his debt can have that deed, a sale of the property by the creditor in the exercise of the power conferred by the deed, and the deed executed by the creditor as attorney in fact for the debtor, set aside in equity, and have an injunction to prevent interference with the debtor's possession of the property conveyed by the deeds, he must pay or tender to the creditor the amount of principal and interest he owes with respect to the subject-matter.
3. Where a summary proceeding is instituted under the Code, § 61-301 et seq., to evict a tenant holding over, the tenant has an adequate remedy under the Code by counter-affidavit and giving the bond as provided by the statute; and the mere fact that, owing to the tenant's poverty, he is unable to give the bond, affords him no ground to go into a court of equity and enjoin the plaintiff in such proceeding from pursuing his summary remedy.
4. Applying the foregoing rulings to the petition in this case, the trial court did not err in sustaining the demurrer thereto in so far as the petition sought a cancellation of the deeds referred to and the injunctive relief prayed for.
5. While the allegations of the petition in this case were insufficient to authorize the cancellation of deeds, and the injunctive relief sought, it did state a good cause of action against one of the defendants for discovery and for money had and received. The trial court, therefore, erred in sustaining a general demurrer to the petition as a whole. 'A general demurrer goes to the whole pleading which it attacks and should be overruled if any part of such pleading is good in substance.' Vickers v. Jones, 200 Ga. 338, 347, 37 S.E.2d 205.
6. 'There is no provision of law for reviewing by writ of error an interlocutory order merely dissolving a temporary restraining order.' Johnson v. L. & P. Gas Co., 202 Ga. 122, 42 S.E.2d 369.
On October 20, 1949, Henry Reardon filed in the Superior Court of Candler County his petition against J. C. Bland, J. C. Bland Jr., and F. D. Wallace, Sheriff of Candler County, wherein he alleged: that he was the owner and in possession of certain described real estate; that on January 22, 1948, he purchased from the defendant, J. C. Bland, a described sawmill and other machinery for the sum of $2,750, executing his retention-title note therefor, and setting out a copy of the note as an exhibit to the petition; that at the same time he borrowed from J. C. Bland $300 and executed to him a note and deed to secure debt, covering the property described in the petition, for that amount, but later discovered that, instead of his executing a deed to secure $300, the deed to secure debt covered the amount of $3,750, a copy of this deed being attached to the petition as an exhibit. It is further alleged: that it was the agreement between the parties that the plaintiff owed J. C. Bland $2,750 for the sawmill and other machinery, and that the deed to secure debt was to be only $300, loaned to the plaintiff at that time, and that the notes and deed to secure debt for $3,750, covering the property described, were obtained by J. C. Bland through fraud; that, on the date the plaintiff signed the deed and notes, he was in the office of the defendant, J. C. Bland, who gave him a Coca-Cola to drink; that immediately afterwards he became dazed and drugged, and does not even remember signing the said papers, and 'petitioner alleges and believes that said Coca-Cola was doped or drugged by the said J. C. Bland in the effort to get him to sign said notes and deed to secure debt without knowledge of their contents as aforesaid; that said deed to secure debt should have been in the sum of $300, as agreed on between your petitioner and the said J. C. Bland.' The plaintiff further alleges: that the defendant J. C. Bland foreclosed the title-retention note, sold the sawmill and other machinery covered thereby, and purchased it at the sale on April 26, 1949, for $300; that he exercised the power of sale contained in the deed to secure debt, and brought the land described to sale on April 5, 1949, at which time it was bought in by J. C. Bland Jr., son of the said J. C. Bland, at and for the price of $3,000; and that J. C. Bland, as agent and attorney in fact for the plaintiff under the foreclosure sale, executed to J. C. Bland Jr. a deed to the property described, a copy of this deed being attached to the petition as an exhibit. It is further alleged: that, on October 18, 1949, J. C. Bland Jr. instituted a dispossessory warrant against the plaintiff for the premises described, which warrant has been served by the defendant sheriff on the plaintiff; and that, unless the defendants are enjoined from proceeding with the dispossessory warrant, the plaintiff and his family will be ousted from the premises by the sheriff. A copy of the dispossessory proceeding is attached to the petition as an exhibit. The plaintiff further alleges: that, on account of his poverty and illness, he is unable to give the statutory bond required in dispossessory proceedings, and it would be inequitable and unjust if the defendant should be permitted to dipossess him and his family; and that the deeds from the plaintiff to J. C. Bland, and from J. C. Bland, as agent and attorney in fact for the plaintiff, to J. C. Bland Jr. are clouds on the plaintiff's title to said property and prevent him from using said property for his own benefit and enjoyment.
The petition further alleges: that, after the purchase of the sawmill, the plaintiff operated the same, and that the logs and timber were sold to General Plywood Corporation, of Savannah, Georgia, and the proceeds thereof delivered to J. C. Bland; that the defendant, J. C. Bland, owes the plaintiff a large sum of money for the logs and timber sold, the exact amount of which is unknown to the plaintiff, but that it is approximately $2000; and that, although repeated demands have been made upon J. C. Bland for said money, he refuses to pay same to the plaintiff, or give him an accounting thereof; that the said J. C. Bland owes the plaintiff from the sale of the logs and timber far more than the $300 loaned to the plaintiff; and that, when paid, it will not only pay the said $300, but entitle the plaintiff to a large credit on the sawmill note referred to.
The prayers of the petition were:
'(a) For discovery against the defendants as follows:
, (b) that the deed to secure debt from the plaintiff to J. C. Bland be declared void, of no effect, and cancelled as a cloud upon plaintiff's title; (c) that the deed from the plaintiff by his attorney-in-fact to J. C. Bland, Jr., be declared void, of no effect, and cancelled as a cloud upon plaintiff's title; (d) that the defendants be temporarily restrained and permanently enjoined from selling, encumbering or otherwise disposing of the property described in the petition; (e) that the defendants be temporarily restrained and permanently enjoined from proceeding further with the dispossory warrant sworn out against plaintiff; (f) that plaintiff have judgment against the said defendants for, such amounts as may appear to be just, equitable and due; (g) for general relief; and (h) for process.
Upon presentation of the petition, a temporary restaining order as prayed for was granted, and the case set for hearing on November 5, 1949, and the defendants were ordered to 'produce at said hearing all records, files, books, and accounts of all money collected by said, J. C. Bland belonging to the petitioner, as prayed for in paragraphs (a)(1) of said petition.'
On November 12, 1949, the defendants, J. C. Bland and F. D. Wallace, sheriff, jointly, and J. C. Bland Jr., separately, interposed their demurrers to the petition upon the grounds: (1) said bill of complaint does not as a whole, nor do any of its several counts, paragraphs, or parts show any cause of action against this defendant; (2) there is no equity in said bill alleged as against this defendant; (3) the plaintiff has an adequate and complete remedy at law as against this defendant; (4) the plaintiff alleges no ground for injunction or equitable relief as against this defendant, except his poverty and inability to give the requisite statutory bond as required by law.
Before the appearance day of the case, and at the interlocutory hearing, the trial court entered the following order on each of these demurrers:
On the same date the trial judge entered an order on the original petition as follows: 'The within restraining order coming on regularly at the appointed time for a hearing and the court being satisfied that there is no equity in the bill, the restraining order is hereby dissolved.'
To these judgments the plaintiff excepts.
Grayson C. Powell, Swainsboro, for plaintiff in error.
Hugh R. Kimbrough, Metter, for defendants in error.
HAWKINS, Justice (after stating the foregoing facts).
1. It is insisted by counsel for the...
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