Opinion
17649.
SUBMITTED NOVEMBER 13, 1951.
DECIDED JANUARY 15, 1952.
Quia timet. Before Judge Boykin. Carroll Superior Court. August 18, 1951.
Murphy Murphy, Gray Skelton, J. Robin Harris, for plaintiffs.
Shirley C. Boykin, Boykin Boykin, C. V. Driver, for defendants.
1. A true owner alone can maintain an action to remove a could on his title to land; and in a petition for such purpose, facts must be alleged to show that the title is in the petitioner.
2. The petition by heirs of the grantor in a security deed to cancel such deed as a cloud on their title was insufficient to show paper title in them. Nor did the allegations show that they had acquired prescriptive title by 20 years' adverse possession.
3. It was not error, on sustaining the general demurrer of the resident defendant, to dismiss the petition as against both the resident and non-resident defendants.
No. 17649. SUBMITTED NOVEMBER 13, 1951 — DECIDED JANUARY 15, 1952.
This case is here on exceptions to an order sustaining a general demurrer to an equitable petition and dismissing the same.
Mrs. Hester Thomas and others, as the surviving wife and children of W. M. Thomas, brought their petition against Mrs. W. L. Stedham, and L. P. Allen as Sheriff of Haralson County, alleging that by inheritance they became the owners of a described tract of land in land lot No. 159 in the 17th district of Haralson County, and that there were three outstanding deeds that should be canceled as a cloud upon their title. It was alleged: There was a purported deed from W. M. Thomas to G. J. Holcombe, dated November 2, 1910; also a quitclaim deed from Bullard, as trustee in bankruptcy of W. M. Thomas, dated March 5, 1925, to the "estate of G. J. Holcombe," and a warranty deed dated January 2, 1926, from Mary Holcombe, as administratrix of the estate of G. J. Holcombe, to W. L. Stedham. The deed from Thomas to Holcombe, though in the form of a warranty deed, was in fact a security deed given to secure an indebtedness of $450, and this indebtedness had been listed in the schedule of debts in a bankruptcy proceeding of W. M. Thomas, in which proceeding a discharge was given to him in September, 1925. The deed from the trustee in bankruptcy to the "estate of G. J. Holcombe" was void, because no grantee, natural or artificial, was named therein, and the deed from Mary Holcombe, as administratrix of the estate of G. J. Holcombe, to the defendant Stedham was void because it was issued without an order of the court of ordinary authorizing the sale of the property. W. M. Thomas died in 1930 in possession of the tract of land described in the aforementioned deeds, and after his death the petitioner, Clarence Thomas, with the consent of the other petitioners, went into possession of said land and has remained in possession, actually working the same as a farm since the death of his father, and the petitioners are the owners as tenants in common of said land by virtue of the laws of descent and distribution; but if the petitioners are not found to have a good record title, they have acquired prescriptive title by reason of the adverse possession of W. M. Thomas and Clarence Thomas for more than 20 years.
The prayers of the petition as against the defendant Mrs. Stedham were: for a cancellation of the three deeds above referred to; to restrain Mrs. Stedham from cutting or removing timber from the property; and for a money judgment "for the increased value of said land," if she should be placed in possession of the land. It was further alleged: that the defendant Mrs. Stedham instituted a dispossessory proceeding against the petitioners in Haralson Superior Court, and in January, 1951, a default judgment was taken against Mrs. Thomas, and a writ of possession has been issued by virtue of the judgment and is now in the hands of the defendant sheriff; and that, unless restrained, the sheriff will evict the petitioners from the property described in the deeds sought to be canceled. The prayer against the sheriff was that he be enjoined from executing the writ of possession.
Among the grounds of the general demurrer, was one designated as paragraph 9, which demurred on the ground that the petition shows on its face that the plaintiffs have no right, title, or interest in the premises sued for, and had no legal right to institute these proceedings.
1. The main relief sought by the plaintiffs was the cancellation of a certain deed as being a cloud on their title. A true owner alone can maintain an action to remove a cloud on his title to land; and, in a petition for such purpose, facts must be alleged which show that the title is in the petitioner. Weyman v. City of Atlanta, 122 Ga. 539 (1) ( 50 S.E. 492). Equity will not cancel a deed as a cloud on the title of a petitioner in possession who has no title and whose only relation to the property is possession acquired under circumstances under which no prescription could be based. Crawford v. Crawford, 143 Ga. 310 ( 85 S.E. 192).
2. Our first inquiry is: do the facts alleged in the petition show that the plaintiffs have paper title to the land described in the deeds sought to be canceled? They claim title by inheritance from W. M. Thomas, who died in 1930. Conceding that the deed from the trustee in bankruptcy to "the estate of G. J. Holcombe" and the deed from Mrs. Mary Holcombe as administratrix of the estate of G. J. Holcombe are void as contended by the plaintiffs — at the time of the death of W. M. Thomas the legal title to the property was not in him, for the reason that the heirs of G. J. Holcombe held title thereto by virtue of the warranty deed from W. M. Thomas to G. J. Holcombe. Though the deed was in fact given to secure a debt, the title passed to G. J. Holcombe, and it was not divested by the bankruptcy proceedings wherein Thomas listed the debt secured and was subsequently discharged from all his debts. Code, § 67-1301; Broach v. Barfield, 57 Ga. 601 (3, 7); Jay v. Whelchel, 78 Ga. 786, 789 ( 3 S.E. 906); Broach v. Powell, 79 Ga. 79 ( 3 S.E. 763). The title was not affected by the facts that Thomas returned the property as his own, and that the bankruptcy court sought to administer it. Woodson v. Veal, 60 Ga. 562 (1); Thaxton v. Roberts, 66 Ga. 704 (1); Spradlin v. Kramer, 146 Ga. 396 ( 91 S.E. 409); Wallace v. Commercial Bank, 159 Ga. 388 (2) ( 125 S.E. 845). Before the grantor in a security deed would become reinvested with title, he must pay or offer to pay the debt for which the security deed was given, and a discharge in bankruptcy of the debt of the grantor does not operate to satisfy the conditions of the security deed or reinvest title in the grantor. "If a man promises to pay money to get the title of his land back, he must pay it, no matter how old the debt is; an action on the debt being barred will not revest the title, or raise a perfect equity in his favor." Jay v. Whelchel, supra (p. 789). W. M. Thomas prior to his death could not have maintained an action to cancel the security deed to G. J. Holcombe without paying or tendering the amount of the debt, and his heirs at law are in no better position. The debt which the deed was given to secure being unpaid at the time of his death, he, Thomas, did not have title to the land which would descend directly to his heirs. Humphrey v. Smith, 142 Ga. 291 (1) ( 82 S.E. 885); Jones v. Laramore, 149 Ga. 825 (7) ( 102 S.E. 526). Before the plaintiffs would be entitled to cancel the deed to Holcombe, they would have to either pay the debt or tender the amount of the debt. Echols v. Green, 140 Ga. 678 (5) ( 79 S.E. 557); Cooper v. Peevy, 185 Ga. 805 (1) ( 196 S.E. 705); Franklin v. Cruce, 187 Ga. 58 (1) ( 200 S.E. 135); Smalley v. Bassford, 191 Ga. 642 (2) ( 13 S.E.2d 662). The plaintiffs, being in equity, must at least offer to pay the debt secured. Duke v. Ayers, 163 Ga. 444 (4) ( 136 S.E. 410). The petition here, failing to allege either payment or tender of the debt secured, is insufficient to show that the plaintiffs have a title by virtue of being the legal heirs of W. M. Thomas.
However, it is asserted that, if the petitioners do not have a good record title to the property, they have a prescriptive title by reason of adverse possession for more than 20 years. Where one executes a security deed and remains in possession of the land described in the deed, his possession is under the grantee in the security deed and is not adverse to his title, and neither prescription nor the statute of limitations is available as a defense to an action in ejectment founded on the security deed. Jay v. Whelchel, 78 Ga. 786, supra (2); Johnson v. Hume, 163 Ga. 867 (1) ( 137 S.E. 56). Under the allegations of the petition in the instant case, the possession of W. M. Thomas at the time of his death was not adverse to the holder of the security deed, and the subsequent possession of one of the petitioners cannot be said to be adverse to the holder of the security deed, no facts being alleged which indicate any time at which the grantor's right of re-entry accrued, or when the possession of the plaintiffs ceased to be permissive and became adverse. The petition thus fails to show that the plaintiffs held prescriptive title by reason of 20 years' adverse possession.
Whether or not the provisions of the act of 1941 (Ga. L. 1941, p. 487; Code, Ann. Supp., § 67-1308), providing for reversion of title to the grantor in a security deed at the expiration of 20 years from the maturity of the debt secured, are applicable to the facts in this case, is not passed upon, for the reason that the plaintiffs do not claim title to the property described in the deeds sought to be canceled by reason of a reversion after the lapse of 20 years; but, according to their contention, because the debt secured had been discharged in bankruptcy, and that by the laws of descent and distribution, they succeeded to the title of the grantor, W. M. Thomas, in 1930. Nor do we determine whether the provisions of the act of 1937 (Ga. L. 1937, p. 755; Code, Ann. Supp., § 85-417) — providing that prescription shall not run against the owner or holder of a deed to secure debt conveying an interest in real property, in favor of a person who has actual or constructive notice of such instrument — apply in the instant case.
Whether the allegations of the petition as to the judgment in the dispossessory proceeding in favor of the defendant and against the plaintiff Mrs. Thomas negative the allegation that the plaintiffs, as tenants in common, are in possession of the property, and render the petition subject to general demurrer on the ground that the facts alleged do not show that the plaintiffs are in possession, does not require any ruling here, in view of our ruling that the plaintiffs do not allege sufficient facts to show that they had title to the property. Compare Moore v. Moore, 188 Ga. 303 (1) ( 4 S.E.2d 18).
The prayer of the plaintiff for a money judgment does not save the petition from being subject to the general demurrer, for the reason that there are no allegations of fact in the petition that support this prayer. There are no pleaded facts upon which a jury could determine what was the value of the land when the plaintiff Clarence Thomas went into possession, nor when the suit was instituted, nor what the improvements consisted of, nor what their value was. See Sandt v. Mason, 208 Ga. 541 (2) ( 67 S.E.2d 767).
3. The petition being subject to the general demurrer of Mrs. Stedham, the only resident defendant, the court upon sustaining her demurrer properly dismissed the petition also as against the Sheriff of Haralson County, a non-resident. Moore v. Atlanta Joint Stock Land Bank, 176 Ga. 697 (6) ( 168 S.E. 558).
There was no error in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur.