Opinion
23745.
ARGUED OCTOBER 11, 1966.
DECIDED JANUARY 5, 1967. REHEARING DENIED JANUARY 23 AND FEBRUARY 9, 1967.
Temporary injunction. Polk Superior Court. Before Judge Foster.
Richard L. Powell, for appellants.
Mundy Gammage, William W. Mundy, for appellee.
The petition of A. B. Watts against Charles G. Jackson and Mrs. Hattie Price Jackson sought the cancellation of a security deed executed by Richard D. Clark to the defendants, the enjoining of a foreclosure sale under this deed, a judgment declaring the fee simple title of described property to be in the petitioner, and other relief. The petitioner alleged that he bought the described property at a foreclosure sale pursuant to the terms of a security deed from Richard Clark to Mrs. J. C. Reeves. It is his contention that the security deed from Richard Clark to the defendants, although recorded prior to the security deed from Richard Clark to Mrs. Reeves, was in fact a second security deed, as shown on the face of the deed, but that the deed inadvertently recited that the first security deed was executed to the Liberty National Bank of Cedartown, Georgia, instead of to Mrs. Reeves. It is alleged that this deed constitutes a cloud upon the petitioner's title. Held:
A court of equity can not decree the cancellation of a deed unless the parties to the deed, or their representatives, are made parties to the action. Sowell v. Sowell, 212 Ga. 351 ( 92 S.E.2d 524); Coleman v. McAdams, 214 Ga. 616 ( 106 S.E.2d 840); Heidelberg v. Smith, 214 Ga. 785 (2) ( 107 S.E.2d 844); North American Acceptance Corp. v. Ramey, 217 Ga. 476 ( 123 S.E.2d 253); Gray v. Georgia Development Enterprises, Inc., 217 Ga. 564 ( 123 S.E.2d 753). The petition failed to make the grantor in the security deed sought to be canceled a party to the action, and it was subject to general demurrer. The trial judge erred in overruling the ground of general demurrer asserting that the petition failed to state a cause of action, and in granting an interlocutory injunction.
Judgment reversed. All the Justices concur, except Duckworth, C. J., who dissents.
ARGUED OCTOBER 11, 1966 — DECIDED JANUARY 5, 1967 — REHEARING DENIED JANUARY 23 AND FEBRUARY 9, 1967.
I am in full agreement with the majority ruling that both parties to the deed sought to be canceled are indispensable parties defendant, and the failure to make the grantor thereof a party was fatal to the relief of cancellation. But I strongly disagree with their ruling that this defect subjected the entire petition, which elsewhere showed an undated deed recorded before the date of another deed under which petitioner claimed, the former containing a statement that it was second to another deed, and which petition prayed for injunction, declaratory relief and decree of title, to dismissal on demurrer. They base their ruling on Sowell v. Sowell, 212 Ga. 351 ( 92 S.E.2d 524), which sustains them. But that decision is demonstrably erroneous. There, in addition to the fatally defective portion seeking cancellation, other portions sought to enjoin sales, encumbrances or disposal of the land described in the deed because the petitioner held a judgment against the grantor in the deed that was recorded before the deed was executed, and hence, superior thereto; and it was also prayed that the court decree the judgment to have priority over the deed, and these were good against the demurrer and ought not to have suffered the just fate of the cancellation portion. The opinion discussed only the law showing that the failure to name as defendant the grantor in the deed was a fatal defect to that portion without mentioning the other portions.
From the time of its creation this court has ruled consistently that, despite defective parts of a pleadings, if other portions allege a cause of action for any relief the petition can not be dismissed on general demurrer. This principle is well stated in Blaylock v. Hackel, 164 Ga. 257 (5) ( 138 S.E. 333), as follows: "A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance. The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer. McLaren v. Steapp, 1 Ga. 376; May v. Jones, 88 Ga. 308 (4), 312 ( 14 S.E. 552, 15 LRA 637, 30 ASR 154); Dyson v. Washington Telephone Co., 157 Ga. 67 (3), 78 ( 121 S.E. 105)." To the same effect see Poole v. Arnold, 187 Ga. 734, 742 (1) ( 2 S.E.2d 83), where it is said, "A general demurrer to a petition goes to the whole pleading to which it is addressed, and should be overruled if the petition states a cause of action for any part of the relief sought." (Emphasis supplied.) Also see Lyles v. Watson, 189 Ga. 768 ( 7 S.E.2d 909); Grant v. Hart, 192 Ga. 153 ( 14 S.E.2d 860); Greene v. Kelly, 193 Ga. 675 ( 19 S.E.2d 718).
There is no room for argument against the statement that in cases of conflict in the decisions of this court, the older must control. This means that the Sowell case, 212 Ga. 351, supra, being in irreconcilable conflict with the older decisions herein cited, it must yield to them and is invalid and should not be followed. To eliminate confusion I would overrule it if my Associates would concur, but without expressly overruling it, we should, and I do, disregard it. I would affirm the judgment overruling the general demurrer.