Opinion
30565.
DECIDED OCTOBER 7, 1944.
Dispossessory warrant; from Long superior court — Judge Knox. April 18, 1944.
C. L. Cowart, for plaintiff. R. L. Dawson, for defendant.
1. Where all right, title, and interest of an owner has been divested by a sale made pursuant to a power of sale given by him in a deed to land to secure a debt, and he thereafter remains in possession, he is a tenant at sufferance of the purchaser, and, as such, may be summarily dispossessed, as provided in the Code, § 61-301.
2. An amendment to a counter-affidavit in a dispossessory-warrant proceeding, setting up facts which tended to show that the defendant was entitled to equitable relief in order to put in him the legal title to the premises involved, but containing merely a prayer that the right of possession be decreed in him, did not convert the case into an equity case, and was not germane to the issues involved. The court erred in allowing the amendment, and the further proceedings were nugatory.
DECIDED OCTOBER 7, 1944.
STATEMENT OF FACTS BY SUTTON, P. J.
On January 24, 1942, J. H. Swindell instituted a dispossessory-warrant proceeding against S. R. Walker to evict him from a 235-acre tract of land situated in Long County, on the ground that Walker was a tenant at sufferance or at will. Walker filed a counter-affidavit in which he alleged that he was in possession of and held the land in his own right, and denied that Swindell had any right or title to said premises, or was entitled to the relief sought in the dispossessory warrant. Afterwards he offered an amendment in which he alleged substantially as follows: that Franklin Chevrolet Company had sued him in the city court of Ludowici on a note for $300, as the balance due on the purchase-price of an automobile truck, to which he filed a defense; that a few days before the case came on for trial, George Franklin, one of the members of the plaintiff partnership, assured the defendant that he was suing him only in order that he could sell 100 acres of the 235-acre tract, and promised him that he would take a judgment against the 100 acres only, and would not undertake to sell the remainder of the land; that he need not attend the trial of the case; that he knew Franklin Chevrolet Company had purchased a security deed which he had given to Beasley Banking Company, covering the 235 acres, and that it would be to his interest to have only the 100-acre tract sold, and he agreed not to prosecute his defense to the suit; that he relied on the representations of Franklin and believed them to be true; that the representations of Franklin were knowingly and falsely made with intent to defraud, and that he was cheated and defrauded by relying on the representations, and so remained away from the court and did not pursue his defense, and did not know when the judgment was rendered; that the plaintiff fraudulently took judgment against the entire body of land, and subsequently sold the entire tract of 235 acres to George Franklin; that he was not at the sale, and did not have notice or knowledge that the plaintiff would undertake to sell the entire body of land, but relying upon the statements and promises of Franklin, he remained away from the sale, and dismissed the matter from his mind; that the conduct of Franklin was a fraudulent scheme for the purpose of cheating and defrauding him out of the 235 acres; that the judgment, execution, and sale of the land, other than 100 acres, was null and void and should be set aside; that he did not know that Franklin was advertising the entire body of land, and that he filed no illegality to the levy; that had he known of it he would have filed an illegality or equitable action setting up the facts and asking the court to annul the judgment and execution except as to the 100 acres; that he was lulled into a state of security by the false and fraudulent representations of Franklin; that had he not relied upon these representations he would have borrowed sufficient money to pay the sums due the plaintiff on the Beasley Banking Company debt and other debts, and would have prevented the sale of said land.
The plaintiff objected to the allowance of the amendment on the grounds that it was not germane to the issue; that it undertook to set up an equitable defense to the eviction proceedings which was not purely defensive in character, but sought affirmative equitable relief; that it sought to nullify and set aside a judgment previously rendered in the city court of Ludowici in favor of Franklin Chevrolet Company against the said S. R. Walker; that the same was a collateral attack upon a judgment of a court of competent jurisdiction, and the plaintiff in said judgment was not a party to the proceedings in which the attack upon said judgment was made; that in effect it sought to set aside a deed made in pursuance of a sale under power of attorney contained in a deed to secure debt executed by S. R. Walker to Beasley Banking Company, regularly transferred to Franklin Chevrolet Company, under which the premises were sold, and under which the plaintiff claims title and right of possession; that the effect of said amendment was to seek affirmative equitable relief, which the plaintiff contends can not be set up as a defense to an eviction affidavit.
The court overruled the plaintiff's objections and allowed the amendment, and the plaintiff filed exceptions pendente lite to that ruling. The case proceeded to trial, and the jury returned a verdict finding for the plaintiff the 100-acre tract of land, and for the defendant the 135-acre tract, according to a plat that was tendered in evidence. The plaintiff made a motion for a new trial which was amended by adding several special grounds. The motion was overruled, and the plaintiff excepted to that judgment, and also assigned error on the exceptions pendente lite to the allowance of the amendment to the counter-affidavit. The defendant died pending the motion for a new trial, and R. W. Walker was appointed his administrator.
The proceeding to evict a tenant by dispossessory warrant is a legal proceeding, but can be converted in the superior court into a case in equity by appropriate pleading. This court transferred this case to the Supreme Court. The court declined to accept jurisdiction, which means that the case does not involve title to land and does not contain pleadings converting it into an equity case. While the counter-affidavit set up facts tending to show a right to specific performance, there was no prayer for such relief and in the absence of such a prayer the case remained a purely legal one, and the allegations of the amended affidavit were not germane to the legal question involved in the case. The pleadings showed the legal title to be in the plaintiff as transferee of a purchaser under the power of sale in a security deed, and in these circumstances the defendant was a tenant at sufferance. Code, § 61-303. Anderson v. Watkins, 42 Ga. App. 319 ( 156 S.E. 43); Williams v. Federal land Bank, 44 Ga. App. 606 ( 162 S.E. 408); Radcliff v. Jones, 46 Ga. App. 33 ( 166 S.E. 450); Atlantic Life Ins. Co. v. Ryals, 48 Ga. App. 793 ( 173 S.E. 875). The plea did not set up any fact which a court of law would recognize as being superior to the legal title held by the plaintiff, or destroying it. The defendant had only an equitable claim which would have required the extraordinary powers of a court of equity to enforce in order that the prima facie legal title of the plaintiff could be defeated. Pound v. Smith, 146 Ga. 431 (2) ( 91 S.E. 405); Matson v. Crowe, 193 Ga. 578 (4) ( 19 S.E.2d 288). The objections to the amendment on the ground that it sought affirmative equitable relief are without merit. Bashinski v. Swint, 133 Ga. 38 ( 65 S.E. 152); Harvey v. Atlanta Lowry Nat. Bank, 164 Ga. 625 ( 139 S.E. 147); Bennett v. Farkas, 126 Ga. 228 ( 54 S.E. 942); Walker v. Edmundson, 111 Ga. 454 ( 36 S.E. 800); Foy v. McCrary, 157 Ga. 461 ( 121 S.E. 804); Allen v. Allen, 154 Ga. 581 ( 115 S.E. 17). The amendment was not germane because it failed to pray for specific performance or other equitable relief. Whether the amendment contained a sufficient description of the land in question, and whether with a sufficient description and a prayer for specific performance the amendment would entitle the defendant to the relief sought, are not questions within the jurisdiction of this court. The court erred in allowing the amendment to the counter-affidavit over the objection that it was not germane in the absence of a prayer for equitable relief, and the further proceedings were nugatory.
Judgment reversed. Sutton, P. J., and Felton and Parker, JJ., concur.