Opinion
18294.
ARGUED JULY 14, 1953.
DECIDED SEPTEMBER 14, 1953.
Equitable petition. Before Judge Hendrix. Fulton Superior Court. May 26, 1953.
F. H. Boney, Joseph J. Fine, for plaintiff in error.
Harris Bullock, Wilson Brooks, Kyle Yancey, contra.
The allegations of the present petition — to the effect that the seller received the $2,000 down payment, refused to deliver possession after execution of the deeds, and, while the parties occupied the relation of landlord and tenant, the seller without paying reasonable rental foreclosed the second security deed and bought in the property, thus divesting the purchaser of her legal rights — were sufficient as against demurrer to set forth a cause of action for equitable relief, and the trial judge did not err in overruling the defendant's general and special grounds of demurrer.
ARGUED JULY 14, 1953 — DECIDED SEPTEMBER 14, 1953.
Mrs. Ethel P. Thompson filed in Fulton Superior Court, against Mrs. Minnie L. Echols, a petition which as amended alleged substantially the following: On September 28, 1950, the petitioner and the defendant entered into a written contract whereby the petitioner agreed to purchase and the defendant agreed to sell a described house and lot at the price of $11,500, to be paid $2,000 cash, buyer to assume a $4,000 loan in favor of First Federal payable $39.04 monthly, and make a second mortgage in favor of the seller for the balance, payable $55 monthly. The petitioner made the $2,000 down payment. Under the special stipulations of the sales contract, the seller was "to pay first and second mortgage notes" until she gave possession of the property, and possession was to be given not later than January 1, 1951. On September 29, 1950, the petitioner executed a second security deed to the defendant to secure a note for $5,519.04, payable $55 per month, beginning November 1, 1950. Thereafter the petitioner demanded possession of the defendant, but she failed and refused to surrender the property to the petitioner. About August 7, 1951, the defendant, for the alleged reason that the indebtedness which the second security deed was given to secure had become in default, exercised the power of sale contained therein, foreclosed on the property, and bought it in for $2,200. By reason of the above facts the sale under the second security deed was wrongful, fraudulent, and malicious. The defendant has been unjustly enriched at the expense of the petitioner, and in all fairness and good conscience equity should set aside the entire transaction, and the petitioner should recover of the defendant $2,000. Copies of the sale contract and the second security deed were attached as exhibits and made parts of the petition.
The petitioner prayed: that process issue; that equity set aside the entire transaction between the petitioner and the defendant; that the petitioner have judgment against the defendant for $2,000 principal plus interest at the rate of 7 percent per annum from September 28, 1950; and that the petitioner have general equitable relief.
Demurrers on general and special grounds were interposed to the amended petition. The trial judge overruled the general demurrer and all of the special demurrers. The defendant excepted.
"A general demurrer to a petition will not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed." Arteaga v. Arteaga, 169 Ga. 595 (4) ( 151 S.E. 5). Since the passage of the Uniform Procedure Act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition is not subject to general demurrer on the ground that the petitioner has an adequate remedy at law, if it states a cause of action for either legal or equitable relief. Code §§ 37-901, 37-907; Pardue Medicine Co. v. Pardue, 194 Ga. 516 ( 22 S.E.2d 143).
Irrespective of whether — as insisted by counsel for the plaintiff in error — the provision contained in the sale contract, whereby the seller would pay the notes until possession was given, became merged in the security deed, so long as the seller retained possession of the property, after the execution of the deeds, she would be the tenant of the purchaser, and would be responsible for the reasonable rental value thereof. Prichard v. Tabor, 104 Ga. 64 (2) ( 30 S.E. 415).
The allegations of the present petition — to the effect that the seller received the $2,000 down payment, refused to deliver possession after execution of the deeds, and, while the parties occupied the relation of landlord and tenant, the seller without paying reasonable rental foreclosed the second security deed and bought in the property, thus divesting the purchaser of her legal rights — were sufficient as against general demurrer to set forth a cause of action for equitable relief.
Insofar as there was any merit in the special grounds of demurrer, they were met by amendment to the petition.
It follows that the trial judge did not err in overruling the defendant's general and special grounds of demurrer to the petition as amended.
Judgment affirmed. All the Justices concur, except Atkinson, P.J., not participating.