Saffold v. Scottish-am. Mortg. Co

• Decision Date: 24 August 1896
• Citation: 98 Ga. 785,27 S.E. 208
• Parties: SAFFOLD v. SCOTTISH-AMERICAN MORTG. CO., Limited. SCOTTISH-AMERICAN MORTG. CO., Limited v. SAFFOLD.
• Court: Georgia Supreme Court

27 S.E. 208

98 Ga. 785

SAFFOLD

v.SCOTTISH-AMERICAN MORTG. CO., Limited.

SCOTTISH-AMERICAN MORTG. CO., Limited

v.SAFFOLD.

Supreme Court of Georgia.

Aug. 24, 1896.

Venue—Title to Land—Cancellation of Deed.

Under the facts alleged in the petition, the superior court of the county in which it was brought was without jurisdiction to entertain it, and therefore the 30urt committed no error in dismissing it on demurrer.

(Syllabus by the Court.)

Error from superior court, Cobb county; George F. Gober, Judge.

Petition by A. R. Saffold against the Scottish-American Mortgage Company, Limited, and another. From the decree rendered, both parties bring error. Affirmed, and cross bill dismissed.

John C. Reed and H. B. Moss, for plaintiff in error.

Anderson & Anderson and W. B. Wingfield, for defendant in error.

SIMMONS, C. J. A. R. Saffold, suing as an heir at law of T. P. Saffold, brought in the superior court of Cobb county his equitable petition against Reid, administrator of T. P. Saffold, and against the Scottish-American Mortgage Company, Limited, in which he alleged that the intestate had made to the mortgage company, as security for a loan, a deed to certain land lying partly in Cobb county, which at the time of the filing of the petition was in the possession of the administrator as a part of the intestate's estate, and that the deed was void for usury, but the administrator (who, it was alleged, was In collusion with the mortgage company) declined to make the defense that it was usurious, and was paying usurious interest to the company from the rents of the land, and was in other respects mismanaging the estate. The petition prayed the appointment of a receiver, and that the administrator be enjoined from further collecting the rents and from paying any part thereof to the mortgage company, and from attempting to sell any of the lands; that the mortgage company be enjoined from enforcing the collection of any part of the debt until the case should be tried and the issue determined, and that a decree be had against the mortgage company, requiring it to refund the interest received by it on the debt, and for the recovery of all of the lands covered by his deed to it; and that such deed be declared void as to title, because of the usury with which it was infected. It appeared from the petition that the defendant Reid was a resident of Putnam county, Georgia, and that the other defendant was a foreign corporation, but had agents in this state, two of whom in Fulton county were named in the petition. It was not alleged that the corporation had an agent in Cobb county, though it was alleged that the petitioner was informed and believed that R. N. Holland, of Cobb county, represented the corporation, as an attorney at law, in the superior court of that county. A demurrer to the petition was sustained upon the ground that the court had no jurisdiction, and the prayer for injunction and the appointment of a receiver was denied. To this judgment the plaintiff excepted.

We think the judge was right in holding that the court was without jurisdiction. The constitution of this state (article 6, § 16, par. 6; Code, § 5172) provides that all civil cases, except those referred to in the preceding paragraphs of the same section, shall be tried in the county where the defendant resides. Paragraph 1 relates to divorce cases. Paragraph 2 provides that "cases respecting titles to land shall be tried in the county where the land lies." Paragraph 3 provides that "equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed." The other paragraphs relate to suits against...