Opinion
15765.
APRIL 17, 1947.
Equitable petition. Before Judge Hendrix. Fulton Superior Court. December 30, 1946.
R. B. Pullen, for plaintiff.
1. A judgment creditor can not levy his execution on land conveyed by a prior security deed, without first redeeming the land and proceeding otherwise as required by the Code, § 39-201. Nor will equity aid such a junior judgment creditor in subjecting to his lien the property conveyed by the security deed, so as to authorize a relaxation of the general rule, unless peculiar facts are shown, involving established equitable principles, such as would render the remedy at law under the statute inadequate, and would authorize a grant of the equitable relief prayed. Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440 (3) ( 19 S.E.2d 155), and cases there cited. Financial inability of the judgment creditor to pay an outstanding and prior lien created by a security deed, and that the judgment debtor has no other property subject to levy and sale, are such peculiar facts as will authorize a relaxation of the general rule and the granting of equitable relief. Swift v. Lucas, 92 Ga. 796 ( 19 S.E. 758); Dwyer v. Jones, 201 Ga. 259 ( 39 S.E.2d 313). Demand for payment of unearned interest on a long-term loan as a prerequisite for redemption affords another "peculiar fact" why the general rule may be relaxed. Cook v. Securities Investment Co., 184 Ga. 544 ( 192 S.E. 179). In the instant case, the allegations of the petition affirmatively show the financial inability of the plaintiff to redeem the land by paying the prior and existing lien; that the judgment debtor has no property other than her equity in the land conveyed by the security deed; that the payment of unearned interest will be required should redemption be undertaken; and in order to effect a redemption it will be necessary for her not only to pay the obligation of her judgment debtor, but also that of a third party against whom she has no claim.
2. A plaintiff can not reach by garnishment a debt due jointly to the defendant and to one not a party to the case. This rule is based on the doctrine that the plaintiff's rights can not rise higher than those which the defendant had, and as the defendant could not alone have sued on the claim, the plaintiff can not in effect do so by way of garnishment. Bryant v. McCrary, 40 Ga. App. 685 ( 151 S.E. 236); 38 C. J. S. 269, § 73 (c).
3. Where the allegations of an equitable petition are sufficient to show a cause of action for some of the relief prayed, it should not be dismissed upon grounds of demurrer which are leveled at the petition as a whole. Terry v. Chandler, 172 Ga. 715 ( 158 S.E. 572).
4. Upon application of the principles announced, the allegations of the petition in the instant case were sufficient to show the plaintiff's right to have the general rule requiring redemption relaxed, and to authorize the grant of the equitable relief prayed. Accordingly, the court erred in sustaining the general demurrer and dismissing the case.
Judgment reversed. All the Justices concur.
No. 15765. APRIL 17, 1947.
Mrs. G. O. Perry, a judgment creditor of Mrs. J. T. Heflin, who had executed a security deed jointly with J. T. Heflin to Atlanta Federal Savings Loan Association, filed a suit in equity against Mrs. J. T. Heflin, J. T. Heflin, and the Savings Loan Association, seeking the appointment of a receiver for the property conveyed to the association, a sale by the receiver of Mrs. Heflin's equity in the property, an injunction to restrain her from disposing of her interest in the property or placing any further encumbrance on the same, and for other relief. Mrs. Heflin demurred generally, and after the petition was amended renewed her original demurrer and demurred to the petition specially. The court sustained the general demurrer and dismissed the case, but did not pass on the grounds of special demurrer. To this judgment Mrs. Perry excepted. Prior to the dismissal of the case the plaintiff voluntarily struck Atlanta Federal Savings Loan Association as a party defendant.
The petition as amended alleged substantially the following facts: On March 18, 1941, the plaintiff obtained a judgment against the defendant, Mrs. Heflin. An execution issued, but no part of the same has been satisfied, and there is now due on it $413.45. On October 21, 1943, Mrs. Heflin and her husband, J. T. Heflin, purchased in the name of J. T. Heflin and Mildred Juanita Stanton (the maiden name of Mrs. J. T. Heflin) certain real estate in Fulton County, which was conveyed jointly and equally to them by a general warranty deed, afterwards duly recorded. Mrs. Heflin took title in her maiden name for the purpose of fraudulently concealing her interest in the property from the plaintiff. On October 21, 1943, Mr. and Mrs. Heflin obtained a loan from Atlanta Federal Savings Loan Association, and executed and delivered to the association their note, which was a joint and several obligation of the makers, and at the same time executed and delivered to the payee a security deed covering the property which they had purchased. The loan matures during September, 1958, and bears interest at the rate of six percent per annum, and the association has refused to accept payment unless three-months' unearned interest, amounting to approximately $45, is paid with the balance of $2000 due as principal. The lien created by the security deed is superior to the plaintiff's execution. Since the obligation due the association is a joint one, it will not accept payment of half of the balance due and execute to Mrs. Heflin a quitclaim deed for her undivided half of the property so as to vest in her a leviable interest. Should the plaintiff voluntarily pay the entire debt, including, of course, that part due by J. T. Heflin, she could not be reimbursed for his proportionate part of the obligation. The equity which the defendant, Mrs. Heflin has in the property is worth $1500, and except as to this she is insolvent, having no other property. Even if the loan were divisible, the plaintiff is financially unable to pay that part of the loan due by the defendant, Mrs. Heflin. J. T. Heflin occupies one unit of a duplex apartment located on said property, which has a reasonable rental value of $40 per month, and another unit is rented to a tenant. The rents being received are not subject to garnishment until the court fixes the respective proportionate interest of the joint owners therein, and a receiver should be appointed to collect and disburse the same under proper orders of the court so that the rights of the plaintiff may be protected. The plaintiff has no adequate remedy at law.