Opinion
19061.
SUBMITTED SEPTEMBER 12, 1955.
DECIDED OCTOBER 10, 1955.
Petition for injunction. Before Judge Manning. Cobb Superior Court.
J. C. Bowden, for plaintiff in error.
Claud M. Hicks, contra.
1. In a dispossessory proceeding under the Code, Ch. 61-3, the issue is tenancy or no tenancy. Brown v. Persons, 48 Ga. 60; Watson v. Toliver, 103 Ga. 123 ( 29 S.E. 614); Henry v. Perry, 110 Ga. 630 ( 36 S.E. 87); Patrick v. Cobb, 122 Ga. 80 ( 49 S.E. 806); Arnold v. Water Power c. Co., 147 Ga. 91 ( 92 S.E. 889); Anderson v. Watkins, 170 Ga. 483 ( 153 S.E. 8).
( a) When an interest in land is divested under the powers of sale in a deed to secure debt, the occupant of the land becomes a tenant at sufferance. Redwine v. Frizzell, 184 Ga. 230, 235 ( 190 S.E. 789).
( b) "Where a summary proceeding is instituted under Code § 61-301 et seq., to evict a tenant holding over, the tenant has an adequate remedy under the Code by counter-affidavit and giving bond as provided by the statute. The mere fact that, owing to the tenant's poverty, he is unable to give the bond, affords him no ground to go into a court of equity and enjoin the plaintiff in such proceeding from pursuing his summary remedy." Reardon v. Bland, 206 Ga. 633, 639 (3) ( 58 S.E.2d 377), and cases cited.
2. The petition nowhere alleges the amount of principal and interest due at the time the deed to secure debt was foreclosed. Herman J. Smith is not a party defendant in the suit, and the petition does not allege that he was agent for the defendant, or authorized to act for her. The allegations of the petition are insufficient to show that the alleged parol contract to extend the due date was such a contract as in good conscience should be performed. "Specific performance is an equitable remedy and one which can not be demanded as a matter of absolute right merely by virtue of proving an agreement. It must be made to appear that the contract is fair, equitable, and just." Morgan v. Mitchell, 209 Ga. 348, 352 ( 72 S.E.2d 310), and cases cited.
3. The powers of sale in a deed to secure debt are matters of contract and will be enforced as written. Plainville Brick Co. v. Williams, 170 Ga. 75 ( 152 S.E. 85). "Under the codified long-recognized maxim that `he who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit' (Code, § 37-104), a borrower who has executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in the deed, unless he first pays or tenders to the creditor the amount admittedly due." Oliver v. Slack, 192 Ga. 7 ( 14 S.E.2d 593), and cases cited.
4. The petitioners seek to cancel a quitclaim deed from J. D. Tindall to the defendant, Mrs. Florence E. Smith. J. D. Tindall, the grantor in the quitclaim deed, is not named as a party defendant. "In all actions to cancel deeds to land, the grantor and grantee therein are necessary parties." Rylee v. Abernathy, 210 Ga. 673, 674 ( 82 S.E.2d 220), and cases cited.
5. Under the foregoing rules, the trial judge did not err in sustaining the general demurrers and dismissing the petition.
Judgment affirmed. All the Justices concur.
SUBMITTED SEPTEMBER 12, 1955 — DECIDED OCTOBER 10, 1955.
Miron Motel, Inc., and Mr. and Mrs. L. B. Whittington, as agents in charge of the corporation, filed a petition for equitable relief against Mrs. Florence E. Smith, seeking to enjoin the execution of a dispossessory warrant procured by Mrs. Smith against the petitioners. The petitioners further sought to have an oral agreement alleged to have been made between Herman J. Smith and L. B. Whittington enforced according to the alleged terms thereof, the cancellation of a quitclaim deed alleged to have been executed to Mrs. Florence E. Smith by J. D. Tindall, and other relief.
The petition shows that the defendant claims title to the property by virtue of the foreclosure of a deed to secure debt from the petitioners to Herman J. Smith and his wife, Mrs. Florence E. Smith. The petitioners attack the foreclosure proceedings as void. A copy of the deed to secure debt is not attached as an exhibit, nor are the powers of sale under the deed otherwise shown. It is alleged that J. D. Tindall bid in the property, and subsequently conveyed it to Mrs. Florence E. Smith by quitclaim deed. It is contended that this deed was executed without consideration, but no copy of the deed is attached as an exhibit, nor are its terms and conditions otherwise alleged. It was further alleged: The corporation and its agent, L. B. Whittington, have contacted bonding companies furnishing security bonds and have contacted individuals, and have failed to find a company or an individual that will consent to make the bond required at the time of filing a counter-affidavit to stay the dispossessory proceedings. After the foreclosure of the deed to secure debt, they entered into an oral agreement with Herman J. Smith "to pay some money, about $2,000 or $3,000, towards satisfying" the security deed, and it was agreed that the deed would be renewed for a period of twelve months. The petitioners have an equity in the property in the sum of $30,000. "Plaintiff offers to do equity by pledging said equity to the demand and lawful claim" of the defendant.
The defendant's general demurrers to the petition were sustained, and the exception is to that judgment.