Opinion
19544.
SUBMITTED NOVEMBER 14, 1956.
DECIDED DECEMBER 5, 1956.
Declaratory judgment. Before Judge Fort. Muscogee Superior Court. May 14, 1956.
Joseph S. Ray, J. Walter Owens, for plaintiff in error.
Ernest C. Britton, contra.
The petition alleges that the petitioner is the owner of thirty-five acres of land, more or less, which he purchased from a successor in title of the defendant, but that the defendant now asserts, by notifying petitioner, her attorney, neighboring landowners, a real-estate agent, and others, that the deed from her is void and of no effect, in that it was "not her act and deed" but a forgery, and she contends that she is the true owner of the property. Petitioner further alleges that he bought the property in good faith, entered into full and complete possession, has occupied the same openly and notoriously for more than seven years under color of title; that, after having secured purchasers who are willing and able to buy the property at a price agreeable to the parties, they have refused to purchase the property because of defendant's claim; that he has no adequate remedy at law or equity; and that petitioner can not, with safety and security, sell the property for the reason that he would be liable on his warranty should defendant successfully attack said deed. The prayer is for a declaratory judgment decreeing title to be in petitioner free and clear of the claims of defendant. The exception is to the overruling of a general demurrer to the petition. Held:
The petition alleges a case of actual controversy, in which the petitioner prays for relief from uncertainty and insecurity caused by the defendant's claim, and is ripe for judicial determination under the declaratory judgment statute, since he alleges an inability to sell the property caused by the assertions of forgery made by the defendant. Code (Ann. Supp.) Ch. 110-11 (Ga. L. 1945, p. 137). Compare Georgia Marble Co. v. Tucker, 202 Ga. 390 ( 43 S.E.2d 245); Lewis v. Lewis, 212 Ga. 168 ( 91 S.E.2d 336). It follows that the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. All the Justices concur.