Opinion
15061.
FEBRUARY 8, 1945. REHEARING DENIED MARCH 7, 1945.
Injunction. Before Judge Edwards. Hart superior court. September 30, 1944.
John B. Morris, for plaintiff in error.
A. S. Skelton, contra.
1. A petition praying for the cancellation of a deed and other equitable relief may be brought in the county of the residence of the grantor or in that of the grantee.
2. Where land is set apart to the widow and minor children as a year's support, the widow is vested with the exclusive right to control the property; and, where one of the children executes a security deed conveying the land, and the widow files a petition seeking a cancellation thereof as a cloud upon her title, the petition is not subject to general demurrer on the ground that it fails to allege a cause of action.
No. 15061. FEBRUARY 8, 1945. REHEARING DENIED MARCH 7, 1945.
Mrs. Sula McCurley filed a petition in Hart superior court against H. W. McCurley, a resident of Hart County, and Planters Cotton Oil Company, a resident of Richmond County, which alleged substantially the following: In 1924 described land was set apart as a year's support to the petitioner and her four minor children. The children are now sui juris, and are no longer beneficiaries of the year's support estate. On March 30, 1939, H. W. McCurley, one of the children, executed and delivered to Planters Cotton Oil Company a security deed covering a portion of the land set apart as a year's support. The deed of H. W. McCurley "constituted Planters Cotton Oil Company, . . its successors and assigns, his attorney in fact, to sell the real estate" at public outcry before the courthouse door in case of default. H. W. McCurley was without legal authority to encumber any portion of the year's support estate, and therefore the security deed is ineffectual in so far as it undertakes to vest in Planters Cotton Oil Company any title or interest in such land. Planters Cotton Oil Company is seeking, under the powers contained in the security deed, to sell the land therein described. The petitioner can not file a claim to prevent the sale and thus avoid a multiplicity of suits. Consequently, under the circumstances set forth, she is without an adequate remedy at law to protect her rights as sole beneficiary of the year's-support estate, and can find an adequate remedy only by invoking the powers of a court of equity. The prayers were: (a) that the defendant, Planters Cotton Oil Company, be enjoined from exercising the powers contained in the security deed, and from selling the land therein set forth; (b) that said defendant be required to surrender the security deed made to it by H. W. McCurley, and that the same be cancelled as a cloud upon the petitioner's title; (c) that process issue; (d) that a second original issue, directed to the sheriff of Richmond County, for service upon the defendant, Planters Cotton Oil Company; and (e) that the petitioner have such other relief as the facts may justify.
No response was filed by H. W. McCurley. Planters Cotton Oil Company appeared specially through its attorney, and demurred on the grounds: (1) the petition sets forth no legal or equitable cause of action; (2) the superior court of Hart County is without jurisdiction because the defendant, Planters Cotton Oil Company, is a resident of Richmond County, and no substantial relief is sought against H. W. McCurley, who resides in Hart County; (3) the allegations of the petition show that the petitioner has an adequate remedy at law, and no cause for restraining the sale is alleged. The exception is to an order overruling the demurrer.
1. "Equity cases shall be tried in the county where a defendant resides against whom substantial-relief is prayed." Constitution, art. 6, sec. 16, par. 3, Code, §§ 2-4303, 3-202. "Each case must be determined on its particular allegations, and must be decided on the nature, extent, and kind of equitable relief sought and the relationship between the parties of the action." First National Bank of Atlanta v. Holderness, 189 Ga. 819, 822 ( 7 S.E.2d 682). "In an equity suit where several persons are joined as defendants, whether or not substantial equitable relief is prayed against the only defendant shown by the petition to be a resident of the county wherein the suit is brought is not to be determined alone by the nature of the prayers against the sole resident defendant, but the petition itself must be looked to; and in the absence of allegations of fact necessary to support such prayers, the petition will not be construed as a suit whereof a court of the county of his residence has jurisdiction." Fowler v. Southern Airlines, 192 Ga. 845 (6) ( 16 S.E.2d 897). The essential fact necessary to confer jurisdiction is, not that a defendant residing in the county has a substantial interest in the litigation, but whether or not substantial relief is prayed against such defendant. Railroad Commission v. Palmer Hardware Co., 124 Ga. 633, 639 ( 53 S.E. 193); Bennett v. Blackshear Mfg. Co., 183 Ga. 240, 243 ( 187 S.E. 865). The essential result sought in the petition in the case at bar is the cancellation of H. W. McCurley's deed to Planters Cotton Oil Company as a cloud on the petitioner's title. In such a case, the grantor as well as the grantee is an essential party. Malone v. Kelly, 101 Ga. 194 ( 28 S.E. 689); Bank of Commerce v. Mallicoat, 150 Ga. 263 ( 103 S.E. 242); Land Development Corp. v. Union Trust Company, 180 Ga. 785, 790 ( 180 S.E. 836); Day v. Parham, 192 Ga. 484 (5 a) ( 15 S.E.2d 714). It has also been held that a petition for injunction, cancellation of deeds, and other equitable relief, in which it is sought to have a conveyance of land delivered up and cancelled, may be brought in the county of the residence of the grantee or in that of the grantor. Taylor v. Colley, 138 Ga. 41 ( 74 S.E. 694); Brown v. Wilcox, 147 Ga. 546 (2) ( 94 S.E. 993); Atlanta, Birmingham c. Ry. Co. v. Smith, 148 Ga. 282 (2) ( 96 S.E. 562); Jennings v. Marlin, 160 Ga. 74 (2) ( 127 S.E. 277).
The substantial prayers of the petition in the instant case are, that Planters Cotton Oil Company be required to deliver up the security deed and the same be cancelled of record, and that the petitioner have such other equitable relief (as against both defendants) as might be necessary to effect a cancellation of the deed, and its removal from the records as a cloud on her title. In other words, the major purpose of the suit is to cancel the deed, while the minor purpose is to restrain the sale of the land under the powers contained in the deed. The petition, both by its allegations and its prayers, sought substantial equitable relief against both defendants, and the venue could properly have been laid in the county of the residence of the grantor or in that of the grantee. A different ruling is not required by the decisions in Caswell v. Bunch, 77 Ga. 504, Coker v. Montgomery, 110 Ga. 20 ( 35 S.E. 273), and similar cases, holding in effect that, where a sheriff's deed is sought to be cancelled, the grantor is only a nominal party, and that the suit must be brought in the county where the grantee resides.
2. Under the allegations of the petition, the question whether the deed should be cancelled would depend on what interest the grantor, one of the children, had in the land during the lifetime of the widow. In Walden v. Walden, 191 Ga. 182 (2) ( 12 S.E.2d 345), it was held: "The title to property set aside as a year's support vests in the widow and minor children. The interest of a minor in the title is not divested upon his reaching majority; and, upon the death of the widow, if she survives his majority, and the majority of any remaining children, he is entitled to his proportionate interest in such of the property as then remains unconsumed." It was said in the opinion: "The widow, as the head of the family (Code, §§ 49-102, 74-106; Fletcher v. Booth, 143 Ga. 644, 85 S.E. 836), is vested with the exclusive right to manage and control the property for the joint benefit of herself and minor children, and, after the marriage or majority of the children, for the benefit of herself alone for life, including the power to sell (since the act of 1937, p. 861, upon approval of the ordinary) the entire interest in the property for such purpose." Applying the above principles, the grantor did not have, during the lifetime of the widow, a right to convey any present interest in a portion of the property set apart as a year's support. It follows that the petition alleged a cause of action for cancellation of the deed as a cloud upon her title, and the trial judge did not err in overruling the general demurrer interposed by the non-resident defendant.
Judgment affirmed. All the Justices concur, except Wyatt, J., absent because of illness.