Sims v. Etheridge

• Docket Number: 7248.
• Decision Date: 14 November 1929
• Citation: 150 S.E. 647,169 Ga. 400
• Parties: SIMS v. ETHERIDGE et al.
• Court: Georgia Supreme Court

150 S.E. 647

169 Ga. 400

SIMS v. ETHERIDGE et al.

No. 7248.

Supreme Court of Georgia

November 14, 1929

Syllabus by Editorial Staff.

Equitable petition alleging defendant proceeded by dispossessory warrant to eject plaintiff from possession of land as tenant holding over, that relation of landlord and tenant had never existed between plaintiff and defendant, and that by reason of plaintiff's poverty she was unable to give bond required by Civ. Code 1910, § 5387, and further alleging facts showing that plaintiff was entitled to certain equitable relief, and for injunction against defendant proceeding under warrant, stated cause of action.

In considering sufficiency of petition on demurrer, extraneous facts cannot be considered, since demurrer deals with sufficiency of allegations actually made in petition.

Where equitable petition sought to enjoin proceeding under dispossessory warrant and sought other relief, and one of defendants in cross-bill alleged that dispossessory warrant sought to be enjoined had been dismissed, court in passing on demurrer to petition erred in considering allegations in cross-petition.

Allegations of petition must be taken most strongly against pleader.

In petition to avoid sale under security deed, on ground that advertisement of sale was published in paper that was not newspaper, in absence of allegation that publication containing advertisement was not in paper in which legal and other public notices were published, court could not hold that such publication was not such a newspaper as was required under terms of power of sale.

In petition to avoid sale under security deed, on ground that paper containing advertisement of sale was not a newspaper allegations in petition that publication was not newspaper was mere conclusion of pleader, where there were no facts stated to sustain such allegations.

Under security deed requiring advertisement of sale to be made in some daily newspaper, paper should be newspaper in general acceptation of term, excluding trade journals and papers devoted exclusively to religious or other special purposes although such notice may be published in legal newspaper or journal devoted to dissemination of legal news for publication of legal notices and the like.

In petition to avoid sale under security deed, on ground that advertisement of sale was not published in newspaper alleging paper was not such, because not publishing general or current news designed to be read by general public, nor intended for general circulation, and not adapted to general reader, but merely subscribed for by legal profession and some bankers and real estate firms, question whether publication containing advertisement was newspaper was one of fact for jury, and not one of law for court.

If advertisement of sale under power contained in junior security deed does not call attention to senior instrument of that kind, and to fact that only title sold is an equity of redemption from senior security deed, purchaser cannot be compelled to complete his purchase under Civ. Code 1910, § 4620, requiring power of sale in deed to be strictly construed.

Where holder of junior security deed under power of sale advertised for sale, for cash, absolute estate in land without mentioning senior security deed securing much larger indebtedness than that secured by junior security deed, and conveyed same to purchaser subject to senior security deed, such exercise of power of sale in junior security deed was not fair and will be set aside at instance of debtor, especially when petition alleges that purchaser bought in behalf of grantee in junior security deed.

Grantee in junior security deed could exercise power of sale contained therein without paying debt secured by senior security deed, and sale by grantee in junior security deed after due advertisement and compliance with power of sale would convey to purchaser valid title to lands subject to senior security deed.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Equitable petition by Minnie Sims against H. A. Etheridge and others, in which defendant Paul S. Etheridge filed a cross-bill. From the judgment, plaintiff brings error. Reversed.

Jas. A. Aldred and H. C. Holbrook, both of Atlanta, for plaintiff in error.

H. A. Etheridge, Ralph H. Pharr, and Dorsey & Shelton, all of Atlanta (Little, Powell, Smith & Goldstein, of Atlanta, amici curiæ), for defendants in error.

Syllabus OPINION.

HINES J.

1. Where one proceeded by a dispossessory warrant to eject another from the possession of land as a tenant holding over, and the latter filed an equitable petition in which she alleged that the relation of landlord and tenant had never existed between her and the former, and that by reason of her poverty she was unable to give the bond required under section 5387 of the Civil Code 1910, and alleged facts going to show that she was entitled to certain equitable relief prayed against the former, and prayed for injunction against further proceeding under the warrant, the petition set forth a cause of action, and the court erred in sustaining a general demurrer. Gilmore v. Wells, 78 Ga. 197; Smith v. Wynn, 111 Ga. 884, 36 S.E. 970; Pope v. Thompson, 157 Ga. 891, 122 S.E. 604; Harvey v. Atlanta & Lowry National Bank, 164 Ga. 625, 139 S.E. 147.

2. In considering the sufficiency of the petition on demurrer extraneous facts cannot be considered. It is the office of the demurrer to deal with the sufficiency of allegations actually made in the petition, and beyond this it cannot properly go. Crowley v. Calhoun, 161 Ga. 354 (3), 130 S.E. 563. In passing upon the demurrer the court erred in considering the allegation in the cross-petition of one of the defendants, to the effect that the dispossessory warrant...