Opinion
17846.
SUBMITTED MAY 13, 1952.
DECIDED JUNE 10, 1952. REHEARING DENIED JULY 15, 1952.
Petition for injunction. Before Judge Pharr. Fulton Superior Court. February 19, 1952.
Jas. H. Dodgen and H. E. Edwards, for plaintiff in error.
E. E. Moore Jr. and R. E. Thomas Jr., contra.
The petition failed to state a cause of action for any of the relief sought, and was properly dismissed on general demurrer.
No. 17846. SUBMITTED MAY 13, 1952 — DECIDED JUNE 10, 1952 — REHEARING DENIED JULY 15, 1952.
Glennie L. Dumas filed her petition in Fulton Superior Court, naming as defendants W. R. Burleigh, Thos. J. Davis Sr., and R. O. Sutton. The petition, as amended, alleged in substance: The plaintiff is the owner of described property in Fulton County. In the early part of 1950, she negotiated a loan with Thos. J. Davis, and on February 1, 1950, the loan was consummated by the plaintiff executing and delivering a deed to secure a debt of $1000, and she received this sum from Davis. While the loan was made by Davis, at his direction the deed to secure debt was executed to W. R. Burleigh, for reasons known only to Davis. The loan was to be repaid monthly over a period of years. Prior to the time she executed the deed to Burleigh, the plaintiff had given a first loan deed to Georgia Savings Bank Trust Company to secure a loan of $3600, to be repaid monthly, a greater portion of which is unpaid but not yet due. The loan deed to Burleigh contained the following clause: "This conveyance is made subject to loan deed in the original amount of $3600, from Glennie L. Dumas to Georgia Savings Bank Trust Company, dated September 3, 1948, recorded in Deed Book 2351, page 07, Fulton County Records." On June 10, 1950, Davis entered into an agreement for the benefit of the plaintiff, as follows: "This is to certify that Mr. Willie G. Morrow agreed to pay along on this loan until Mrs. Glennie L. Dumas receive her check from her husband in the Army. We also agreed to and did accept payments from Mrs. Morrow, until Mrs. Dumas received her check and agreed to pay the loan in full. (O.K.) (Signed) Thos. J. Davis, Sr. M. D. 6/10/1950." Notwithstanding payments "along" by Morrow, and in violation of the memorandum agreement, Davis has exercised the power of sale, and after advertisement of the property, sold it on January 1, 1952. Under the provision of the loan deed made to Georgia Savings Bank Trust Company, the plaintiff is a tenant holding under said company, and R. O. Sutton purchased the property subject to the terms, provisions, and obligations of the first loan deed. The sale under the second loan deed is void; and while it may have the effect of divesting any equity of the plaintiff, which is denied, the sale did not disturb the relation of landlord and tenant between the plaintiff and Georgia Savings Bank Trust Company. The obligation by the plaintiff to W. R. Burleigh is tainted with usury, and as a result he has forfeited all interest on the loan. The sale of the property on the 1st day of January had the effect of limiting and depressing bidders on the property. R. O. Sutton has demanded possession of the property, and is threatening to institute dispossessory proceedings.
The prayers of the petition were for process, rule nisi, temporary and permanent restraining order, an accounting for money had and received, that the sale under the second security deed be declared void, and for other relief.
The general demurrers of the defendants to the petition were sustained, and the exception is to that judgment.
On general demurrer the allegations of a petition are to be construed most strongly against the pleader. The demurrer admits only the facts well pleaded, and not the legal conclusions of the pleader. Lee v. City of Atlanta, 197 Ga. 518, 520 ( 29 S.E.2d 774); Whitfield v. Whitfield, 204 Ga. 64 ( 48 S.E.2d 852); Thornton v. Hardin, 205 Ga. 215, 218 ( 52 S.E.2d 841). The petition in this case, construed in its entirety, when stripped of all conclusions of the pleader, is insufficient to withstand the general demurrers.
The petition does not allege that the debt was not due and in default at the time the sale was had. It is not alleged that the sale was not properly advertised, nor fairly conducted. The allegation that the property was sold on a legal holiday is insufficient to void the sale. A sale of property in this State under the power of sale contained in a deed to secure debt is not void because the sale is had on a legal holiday. Biggers v. Hall, 186 Ga. 886 ( 199 S.E. 208).
The petition alleges that the sale could only divest the equity of redemption of the plaintiff, but it is denied that the plaintiff's equity was sold. No facts are alleged to support the contention that the sale did not divest the plaintiff of her equity in the property. Applying the rule that the petition must be construed most strongly against the plaintiff on demurrer (and since copies of the deed executed by the plaintiff are not attached and made a part of the petition), it is not shown that the sale was not in full compliance with the powers, terms, and conditions of the deed to secure debt.
"It is well settled in this State that, where a landlord proceeds against a tenant under the Code, §§ 61-301, 61-302, the tenant may arrest the dispossessory warrant by filing a counter-affidavit and tendering a bond under section 61-303, and, in the absence of an intervening equity, the tenant's defenses against the dispossessory warrant can not be urged in a proceeding in equity to enjoin the dispossessory warrant." Imperial Hotel Co. v. Martin, 199 Ga. 801, 803 ( 35 S.E.2d 502), and cases cited.
The petition in the present case does not allege any fact tending to show that the remedy provided by law would not be adequate, if a dispossessory proceeding should be brought by the defendants against the plaintiff.
Any contention that the plaintiff is entitled to an accounting by the defendants for any moneys that may have been paid on her debt by Morrow, is without merit. She procured Morrow to make such an agreement, and no reason is given why she can not obtain from him a full and complete statement of moneys that he may have paid on her debt.
There is another general rule of law applicable to the petition. Under the maxim that "he who would have equity must do equity," the party seeking equitable relief must have paid or tendered the amounts due, and must have done so before filing suit, unless the tender be executed upon some equitable ground. Williams v. Fouche, 157 Ga. 227, 229 ( 121 S.E. 217); Harton v. Federal Land Bank of Columbia, 187 Ga. 700 ( 2 S.E.2d 62); Clisby v. City of Macon, 191 Ga. 749 ( 13 S.E.2d 772). The petition fails to show any legal or equitable reason for the plaintiff's failure to tender the amount due on her debt prior to the filing of her suit, and her petition fails to state a cause of action for any relief sought.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.